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HomeMy WebLinkAbout09-552 RubensteinHerbert F. Rubenstein, Esquire Suite 107 25 West Skippack Pike Broad Axe, PA 19002 -5152 Dear Mr. Rubenstein: ADVICE OF COUNSEL May 18, 2009 09 -552 This responds to your letter dated April 15, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a township council member with regard to participating in discussions and negotiations pertaining to a new labor contract between the township and a bargaining unit or voting on a labor contract with such bargaining unit when the township council member is a member of the same union district council through his employment as a district lottery representative with the Pennsylvania Department of Revenue. Facts: As Solicitor for Plymouth Township ( "the Township "), located in Montgomery County, Pennsylvania, you have been authorized by Vincent Gillen ( "Mr. Gillen "), a Member of Township Council, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Township is governed by a five - member Council pursuant to the Township's Home Rule Charter. You state that the Township is about to negotiate a new labor contract ( "Labor Contract ") with members of the AFSCME Bargaining Unit ( "Bargaining Unit "), District Council No. 88, Local No. 317. Mr. Gillen is employed as a district lottery representative with the Pennsylvania Department of Revenue and is a member of AFSCME District Council No. 88, Local No. 1979. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Gillen as a Township Council Member to participate in discussions and negotiations pertaining to the Labor Contract or to vote on the Labor Contract. Rubenstein, 09 -552 May 18, 2009 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a Member of Township Council, Mr. Gillen is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his Rubenstein, 09 -552 May 18, 2009 Page 3 immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa. C. S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no Rubenstein, 09 -552 May 18, 2009 Page 4 way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In applying the above provisions of the Ethics Act to the instant matter, you are advised that pursuant to Section 1103(a) of the Ethics Act, Mr. Gillen, in his capacity as a Member of Township Council, generally would have a conflict of interest in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Based upon the submitted facts, the Bargaining Unit would not be considered a business with which Mr. Gillen is associated because Mr. Gillen is not a director, officer, owner, employee, or holder of a financial interest in same. Cf., Hartman, Advice 09- 549; Filbey, Advice 06 -569. Mr. Gillen's membership in AFSCME District Council No. 88, Local No. 1979 would not in and of itself form the basis for a conflict of interest for him under the Ethics Act in matters pertaining to the Bargaining Unit. Accordingly, you are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Gillen, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit or restrict Mr. Gillen from participating in discussions or negotiations pertaining to the Labor Contract or from voting on the Labor Contract. It is parenthetically noted that the Public Employee Relations Act provides as follows: § 1101.1801. Conflict of interest (a) No person who is a member of the same local, State, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. (b) Any person who violates subsection (a) of this section shall be immediately removed by the public employer from his role, if any, in the collective bargaining negotiations or in any matter in connection with such negotiations. 43 P.S. § 1101.1801. Since the State Ethics Commission does not have the statutory jurisdiction to administer or interpret the Public Employee Relations Act, it is recommended that Mr. Gillen obtain legal advice as to any potential impact of that Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Plymouth Township Home Rule Charter or the Public Employee Relations Act. Conclusion: As a Member of Council for Plymouth Township ( "the Township "), located in Montgomery County, Pennsylvania, Vincent Gillen ( "Mr. Gillen ") is a public Rubenstein, 09 -552 May 18, 2009 Page 5 official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, Mr. Gillen, in his capacity as a Member of Township Council, generally would have a conflict of interest in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Based upon the submitted facts that: (1) the Township is about to negotiate a new labor contract ( "Labor Contract ") with members of the AFSCME Bargaining Unit ( "Bargaining Unit "), District Council No. 88, Local No. 317; and (2) Mr. Gillen is employed as a district lottery representative with the Pennsylvania Department of Revenue and is a member of AFSCME District Council No. 88, Local No. 1979, you are advised as follows. The Bargaining Unit would not be considered a business with which Mr. Gillen is associated because Mr. Gillen is not a director, officer, owner, employee, or holder of a financial interest in same. Mr. Gillen's membership in AFSCME District Council No. 88, Local No. 1979 would not in and of itself form the basis for a conflict of interest for him under the Ethics Act in matters pertaining to the Bargaining Unit. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Gillen, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit or restrict Mr. Gillen from participating in discussions or negotiations pertaining to the Labor Contract or from voting on the Labor Contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Plymouth Township Home Rule Charter or the Public Employee Relations Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel