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HomeMy WebLinkAbout09-584 McDermott ADVICE OF COUNSEL December 23, 2009 Thomas A. McDermott Executive Director Lower Lackawanna Valley Sanitary Authority P.O. Box 2067 398 Coxton Road Duryea, PA 18642-2067 09-584 Dear Mr. McDermott: This responds to your letters of October 27, 2009, and November 6, 2009, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a member and chairman of a municipal authority board with regard to receiving from an authority consultant a holiday dinner valued at approximately $40.00. Facts: As Executive Director of the Lower Lackawanna Valley Sanitary Authority (“Authority”) located in the Borough of Duryea, Luzerne County, Pennsylvania, you request an advisory on behalf of Authority Board Member and Chairman Mr. Alfred Akulonis, Jr. (“Mr. Akulonis”). You have submitted facts, the material portion of which may be fairly summarized as follows. The Authority Board appoints and pays professional consultants, including but not limited to engineers, solicitors, and accountants, to perform duties as directed by the Authority Board or by management of the Authority. One such consultant has invited the Members of the Authority Board to a holiday dinner to be held at a local public restaurant at an estimated cost of approximately $40.00 per person. You state that no Authority business and/or operations would be discussed during the holiday dinner. Based upon the above, you ask whether Mr. Akulonis’ acceptance of the holiday dinner would violate the Ethics Act. 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 McDermott, 09-584 December 23, 2009 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Member and Chairman of the Authority Board, Mr. Akulonis 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 pertaining 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 McDermott, 09-584 December 23, 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. 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office, including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Subject to certain statutory exceptions not applicable to this matter: (1) Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift; and (2) Section 1105(b)(7) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses exceed $650 in an aggregate amount per year. 65 Pa.C.S. § 1105(b)(6)-(7). The Ethics Act does not prohibit a public official/public employee from accepting “no-strings-attached” gifts, transportation, lodging or hospitality (also generically referred McDermott, 09-584 December 23, 2009 Page 4 to herein as “items”) from a consultant (cf., Cooper, Opinion 92-009). However, such item(s) received by a public official/public employee may form the basis for a violation of Section 1103(a) of the Ethics Act (pertaining to conflicts of interest) if the public official/public employee takes action in furtherance of the interests of the donor. While the receipt of an item of de minimis (insignificant) value would not, in and of itself, create a conflict of interest as to action involving the donor (see, e.g., Stieh, Advice 93-503), the decision as to whether a conflict of interest is presented by the receipt of item(s) is determined on a case-by-case basis. Generally, when a public official or public employee has received item(s) that would form the basis for a conflict of interest under the Ethics Act, the public official/public employee must abstain from acting in matters pertaining to the donor. In the event of a voting conflict, the public official/public employee must abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act, 65 Pa.C.S. § 1103(j). Item(s) received by a public official/public employee may also form the basis for a violation of Section 1103(b) or Section 1103(c) of the Ethics Act (pertaining to improper influence) if there is an understanding that the vote, official action or judgment of the public official/public employee will be influenced thereby. See, e.g., Kasaback, Order 993; Helsel, Order 801; Volpe, Order 579-R; and Smith, Order 578-R. Additionally, depending upon the value of the item(s) received, the public official or public employee may be required to disclose his receipt of such item(s) on his Statement of Financial Interests, which is a public record. Having set forth the above principles, you are advised that based upon the submitted facts, Mr. Akulonis’ acceptance of a no-strings-attached holiday dinner valued at approximately $40.00 from an Authority consultant would not, in and of itself, form the basis for a conflict of interest under Section 1103(a) of the Ethics Act or require disclosure of the dinner on the Statement of Financial Interests form. This conclusion is based upon the value of the dinner, which would be both de minimis and below the threshold for disclosure on the Statement of Financial Interests form. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: As a Member and Chairman of the Board of the Lower Lackawanna Valley Sanitary Authority (“Authority”) in Luzerne County, Pennsylvania, Mr. Alfred Akulonis, Jr. (“Mr. Akulonis”) is a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts, Mr. Akulonis’ acceptance of a no-strings-attached holiday dinner valued at approximately $40.00 from an Authority consultant would not, in and of itself, form the basis for a conflict of interest under Section 1103(a) of the Ethics Act or require disclosure of the dinner on the Statement of Financial Interests form. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics 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 . McDermott, 09-584 December 23, 2009 Page 5 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