HomeMy WebLinkAbout10-551 Auslander
ADVICE OF COUNSEL
March 9, 2010
Sam S. Auslander, Esquire
Eckell, Sparks, Levy, Auerbach, Monte,
Sloane, Matthews & Auslander, P.C.
Legal Arts Building
344 W. Front Street
P.O. Box 319
Media, PA 19063
10-551
Dear Mr. Auslander:
This responds to your letters dated December 22, 2009, and January 11, 2010,
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.C.S. § 1101 et seq., would present any prohibitions or restrictions upon a township
commissioner, whose spouse is employed as a corporal with the township police
department, with regard to participating in discussions or votes on: (1) personnel
matters regarding the police department, including the appointment of a police officer
superior in rank to the commissioner’s spouse and the hiring, promotion, or discipline of
police officers; (2) a township budget that includes allocations to the police department
for salaries and benefits; (3) collective bargaining contracts with the Fraternal Order of
Police or issues pertaining to the modification of the township police pension fund in
which her spouse is a participant; or (4) a police grievance where the decision on the
grievance may affect not only the grievant but also other members of the police
department.
Facts:
As a member of the law firm that serves as Solicitor for Tinicum Township
(“the Township”), located in Delaware County, Pennsylvania, you have been authorized
by Township Commissioner Lisa Edmiston (“Ms. Edmiston”) to request an advisory from
the Pennsylvania State Ethics Commission on her behalf. You have submitted facts,
the material portion of which may be fairly summarized as follows.
You state that Ms. Edmiston was recently sworn into office as a Member of the
Township Board of Commissioners. Ms. Edmiston’s spouse is employed as a Corporal
with the Township Police Department (“Police Department”). You state that the Police
Department has fifteen full-time police officers, two Corporals, two Sergeants, and an
Acting Officer-in-Charge. Ms. Edmiston’s spouse is a participant in the Township Police
Pension Fund.
Auslander, 10-551
March 9, 2010
Page 2
Based upon the above submitted facts, you pose the following specific questions:
1. Whether Ms. Edmiston would be permitted to participate in discussions
and votes on personnel matters regarding the Police Department,
including the appointment of a police officer superior in rank to her spouse
and the hiring, promotion, or discipline of police officers;
2. Whether Ms. Edmiston would be permitted to consider and vote on a
Township budget that includes allocations to the Police Department for
salaries and benefits;
3. Whether Ms. Edmiston would be permitted to participate in discussions
and votes on collective bargaining contracts between the Fraternal Order
of Police and the Township or issues pertaining to the modification of the
Township Police Pension Fund; and
4. Whether Ms. Edmiston would be permitted to participate in discussions
and vote on a police grievance where the decision on the grievance may
affect not only the grievant but also other members of the Police
Department.
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 Township Commissioner, Ms. Edmiston 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
Auslander, 10-551
March 9, 2010
Page 3
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
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.
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; Schweinsburg, 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
Auslander, 10-551
March 9, 2010
Page 4
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
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 Davison, Opinion 08-006, the Commission held that Section 1103(a) of the
Ethics Act would allow a public official/public employee to participate in negotiations for
a collective bargaining agreement covering or impacting an immediate family member
subject to the condition that the class/subclass exclusion would be applicable. Id., at 5
(overruling Van Rensler, Opinion 90-017, to the limited extent it was inconsistent with
the Commission’s holding). The Commission noted that there may be uncertainty as to
the direction negotiations will take during the process of negotiating a collective
bargaining agreement, and the Commission generally advised that where the
class/subclass exclusion initially would apply to permit a public official/public employee
to participate in negotiations for a collective bargaining agreement covering or impacting
an immediate family member, the public official/public employee would have to remain
cognizant as to whether developments during the negotiating process would render the
class/subclass exclusion no longer applicable, such that the public official/public
employee would be required to abstain from further participation in the negotiations.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows. Ms. Edmiston’s spouse is a member of her “immediate family” as
that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Ms.
Edmiston generally would have a conflict of interest in matters before the Township
Board of Commissioners that would financially impact her, a member of her immediate
family such as her spouse, or a business with which she or a member of her immediate
family is associated.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first specific question, you are advised as follows. Subject to
the de minimis exclusion and the class/subclass exclusion, pursuant to Section 1103(a)
of the Ethics Act, Ms. Edmiston would have a conflict of interest as to any Police
Department personnel matter(s) that would financially impact her spouse. Ms.
Edmiston also generally would have a conflict of interest as to matter(s) affecting her
spouse’s superior(s) within the Police Department, including but not limited to the
appointment of a police officer superior in rank to her spouse, because such
individual(s) would exercise authority over Ms. Edmiston’s spouse with respect to his
employment as a Corporal with the Police Department. See, Confidential Opinion, 05-
004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power).
Absent a basis for a conflict of interest such as a private pecuniary benefit to her, her
spouse, or a business with which she or her spouse is associated, Ms. Edmiston would
not have a conflict of interest as to other Police Department personnel matter(s).
In each instance of a conflict of interest, Ms. Edmiston would be required to
abstain fully from participation. The abstention requirement would extend beyond voting
to include any use of authority of office. In each instance of a voting conflict, Ms.
Edmiston would be required to abstain and to fully satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
Auslander, 10-551
March 9, 2010
Page 5
As to your second specific question, you are advised as follows. Portions of the
Township budget pertaining to the Police Department generally would not present a
conflict of interest for Ms. Edmiston absent some private pecuniary benefit to her
spouse. However, where her spouse would be financially impacted by the Township
budget, Ms. Edmiston might have a conflict of interest depending upon how the budget
is structured.
If the funding for Ms. Edmiston’s spouse’s salary would be a separate line item
on the budget, she would have a conflict of interest as to that particular line item.
However, if the funding for Ms. Edmiston’s spouse’s salary would be included within a
line item for a class/subclass and her spouse and the other members of the
class/subclass would receive the same financial benefits thereby, she would not have a
conflict as to that line item and could participate and vote on it. Cf., Teti, Advice 03-502;
Confidential Advice, 04-512.
You are advised that Ms. Edmiston would have a conflict of interest as to
allocations to the Police Department for benefits unless the class/subclass exclusion
would be applicable. In order for the class/subclass exclusion to be applicable, Ms.
Edmiston’s spouse would have to be part of a class/subclass of Township employees
who would be similarly situated as a result of relevant shared characteristics, and the
benefits that Ms. Edmiston’s spouse would receive would have to be no different than
those received by the other members of the class/subclass.
As noted above, in each instance of a conflict of interest, Ms. Edmiston would be
required to abstain fully from participation and in the instance of a voting conflict, to
abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
With regard to your third specific question, you are advised that Section 1103(a)
of the Ethics Act would not prohibit Ms. Edmiston from participating in discussions or
votes on collective bargaining contracts between the Fraternal Order of Police and the
Township or issues pertaining to the modification of the Township Police Pension Fund,
subject to the condition that the class/subclass exclusion would be applicable as to any
impact upon her spouse.
It is parenthetically noted that as to the collective bargaining process, 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
Auslander, 10-551
March 9, 2010
Page 6
recommended that Ms. Edmiston obtain legal advice as to any potential impact of that
Act.
With regard to your fourth specific question, you are advised as follows. Subject
to the de minimis exclusion and the class/subclass exclusion, Ms. Edmiston would have
a conflict of interest in participating in the discussions or vote on any police grievance(s)
where the decision on such grievance(s) would financially impact her spouse or her
spouse’s superior(s). In each instance of a conflict of interest, Ms. Edmiston would be
required to abstain fully from participation and in the instance of a voting conflict, to
abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the First Class Township
Code or the Public Employee Relations Act.
Conclusion:
As a Commissioner for Tinicum Township (“Township”), located in
Delaware County, Pennsylvania, Lisa Edmiston (“Ms. Edmiston”) 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. Ms. Edmiston’s spouse, who is employed as a Corporal with the
Township Police Department (“Police Department”), is a member of her “immediate
family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the
Ethics Act, Ms. Edmiston generally would have a conflict of interest in matters before
the Township Board of Commissioners that would financially impact her, a member of
her immediate family such as her spouse, or a business with which she or a member of
her immediate family is associated.
Subject to the “de minimis exclusion” and the “class/subclass exclusion” to the
Ethics Act’s definition of “conflict” or “conflict of interest,” pursuant to Section 1103(a) of
the Ethics Act, Ms. Edmiston would have a conflict of interest as to any Police
Department personnel matter(s) that would financially impact her spouse. Ms.
Edmiston also generally would have a conflict of interest as to matter(s) affecting her
spouse’s superior(s) within the Police Department, including but not limited to the
appointment of a police officer superior in rank to her spouse, because such
individual(s) would exercise authority over Ms. Edmiston’s spouse with respect to his
employment as a Corporal with the Police Department. Absent a basis for a conflict of
interest such as a private pecuniary benefit to her, her spouse, or a business with which
she or her spouse is associated, Ms. Edmiston would not have a conflict of interest as
to other Police Department personnel matter(s).
Portions of the Township budget pertaining to the Police Department generally
would not present a conflict of interest for Ms. Edmiston absent some private pecuniary
benefit to her spouse. However, where her spouse would be financially impacted by the
Township budget, Ms. Edmiston might have a conflict of interest depending upon how
the budget is structured. If the funding for Ms. Edmiston’s spouse’s salary would be a
separate line item on the budget, she would have a conflict of interest as to that
particular line item. However, if the funding for Ms. Edmiston’s spouse’s salary would
be included within a line item for a class/subclass and her spouse and the other
members of the class/subclass would receive the same financial benefits thereby, she
would not have a conflict as to that line item and could participate and vote on it. Ms.
Edmiston would have a conflict of interest as to allocations to the Police Department for
benefits unless the class/subclass exclusion would be applicable. In order for the
class/subclass exclusion to be applicable, Ms. Edmiston’s spouse would have to be part
of a class/subclass of Township employees who would be similarly situated as a result
of relevant shared characteristics, and the benefits that Ms. Edmiston’s spouse would
receive would have to be no different than those received by other members of the
class/subclass.
Auslander, 10-551
March 9, 2010
Page 7
Section 1103(a) of the Ethics Act would not prohibit Ms. Edmiston from
participating in discussions or votes on collective bargaining contracts between the
Fraternal Order of Police and the Township or issues pertaining to the modification of
the Township Police Pension Fund, in which fund her spouse is a participant, subject to
the condition that the class/subclass exclusion would be applicable as to any impact
upon her spouse. Subject to the de minimis exclusion and the class/subclass exclusion,
Ms. Edmiston would have a conflict of interest in participating in the discussions or vote
on any police grievance(s) where the decision on such grievance(s) would financially
impact her spouse or her spouse’s superior(s).
In each instance of a conflict of interest, Ms. Edmiston would be required to
abstain fully from participation. The abstention requirement would extend beyond voting
to include any use of authority of office. In each instance of a voting conflict, Ms.
Edmiston would be required to abstain and to fully satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the First Class
Township Code 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