HomeMy WebLinkAbout10-559 Babiak
ADVICE OF COUNSEL
March 30, 2010
William F. Shimko, Esquire
Mike Adams & Associates, LLC
55 Old Clairton Road
Suite 206
Pittsburgh, PA 15236
10-559
Dear Mr. Shimko:
This responds to your letter dated February 4, 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 three
members of a five-member municipal authority board with regard to participating in
deliberations and actions involving certain personnel/employment matters or
participating in negotiations and actions involving a new collective bargaining
agreement with the bargaining unit that represents the authority’s employees, where: (1)
one board member has a son who is employed with the authority and is a member of
the bargaining unit; (2) one board member has a son-in-law who is employed with the
authority and is a member of the bargaining unit; and (3) one board member is a
probationary employee with the authority and would become a member of the
bargaining unit following the completion of his probationary period; and whether the
voting conflict exception(s) of Section 1103(j) of the Ethics Act would be applicable to a
three-member quorum of the authority board.
Facts:
As Solicitor for the West Mifflin Sanitary Sewer Municipal Authority
(“Authority”), you have been authorized by Authority Board Members Richard M. Babjak
(“Mr. Babjak”), Albert J. Kopay, Jr. (“Mr. Kopay”), and Rick Manspeaker (“Mr.
Manspeaker”) to request an advisory from the Pennsylvania State Ethics Commission
on their behalf. You have submitted facts, the material portion of which may be fairly
summarized as follows.
The Authority is governed by a five-Member Board. You state that pursuant to
the Authority’s By-laws, three Members of the Board constitute a quorum. You further
state that the Authority’s By-laws provide that “[a]ll actions of the Board, however, shall
be taken only on the affirmative vote of at least three members of the Board.” February
4, 2010, Advisory Request Letter of Shimko, at paragraph 2.
Mr. Babjak has a son who is employed by the Authority. Mr. Kopay has a son-in-
law who is employed by the Authority. Mr. Manspeaker is a recently hired employee of
Shimko, 10-559
March 30, 2010
Page 2
the Authority, and he is presently serving his probationary period. You state that Mr.
Babjak’s son, Mr. Kopay’s son-in-law, and Mr. Manspeaker have and exercise no
managerial responsibilities in their work at the Authority.
Mr. Babjak’s son and Mr. Kopay’s son-in-law are members of the bargaining unit
(“the Bargaining Unit”) that represents the Authority’s employees. Mr. Manspeaker
would become a member of the Bargaining Unit following the successful completion of
his probationary period. You state that Mr. Babjak’s son, Mr. Kopay’s son-in-law, and
Mr. Manspeaker are not union officials or members of the negotiating team that
bargains with the Authority.
You state that the wages paid and benefits given by the Authority to Mr. Babjak’s
son, Mr. Kopay’s son-in-law, and Mr. Manspeaker are set forth in a collective bargaining
agreement between the Authority and the Bargaining Unit. You state that wages and
benefits only change pursuant to the current collective bargaining agreement or under a
new collective bargaining agreement.
Based upon the above submitted facts, you pose the following specific questions:
1. Whether the Ethics Act would permit Mr. Babjak to participate in
deliberations and actions involving personnel/employment matters
(including but not limited to discipline and promotion) related to his son
individually or collectively as part of the Bargaining Unit;
2. Whether the Ethics Act would permit Mr. Kopay to participate in
deliberations and actions involving personnel/employment matters
(including but not limited to discipline and promotion) related to his son-in-
law individually or collectively as part of the Bargaining Unit;
3. Whether the Ethics Act would permit Mr. Manspeaker to participate in
deliberations and actions involving personnel/employment matters
(including but not limited to discipline and promotion) related to himself
individually or collectively as part of the Bargaining Unit;
4. Whether the Ethics Act would permit Mr. Manspeaker to participate in
deliberations and actions involving personnel/employment matters
(including but not limited to discipline and promotion) related to non-union
management employees and union member employees who are Mr.
Manspeaker’s supervisors;
5. Whether the Ethics Act would permit Mr. Babjak, Mr. Kopay, and Mr.
Manspeaker—in his capacity as a Board Member—to participate in
negotiations and actions as to a new collective bargaining agreement prior
to the expiration of the current collective bargaining agreement; and
6. Whether the voting conflict exception(s) of Section 1103(j) of the Ethics
Act would be applicable to a three-Member quorum of the Board.
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 Authority Board Members, Mr. Babjak, Mr. Kopay, and Mr. Manspeaker are
public officials subject to the provisions of the Ethics Act.
Shimko, 10-559
March 30, 2010
Page 3
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
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
Shimko, 10-559
March 30, 2010
Page 4
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.
It is noted that 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
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
Shimko, 10-559
March 30, 2010
Page 5
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.
As to each Board Member (that is, Mr. Babjak, Mr. Kopay, or Mr. Manspeaker),
pursuant to Section 1103(a) of the Ethics Act, the Board Member 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.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first, second, third, and fourth specific questions, 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, Mr. Babjak would have a conflict of interest as to
participating in deliberation(s) or action(s) involving personnel/employment matters
(including but not limited to discipline and promotion) that would financially impact his
son.
Mr. Kopay’s son-in-law is not a member of his “immediate family” as that term is
defined in the Ethics Act. Since Mr. Kopay’s son-in-law is not a member of his
immediate family, Mr. Kopay would not have a conflict of interest under Section 1103(a)
of the Ethics Act in matters before the Authority Board that would financially impact his
son-in-law but that would not financially impact Mr. Kopay, a member of his immediate
family, or a business with which he or a member of his immediate family is associated.
Therefore, absent some basis for a conflict of interest such as a private pecuniary
benefit to Mr. Kopay, 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 Mr. Kopay from participating in deliberations and actions involving
personnel/employment matters (including but not limited to discipline and promotion)
related to his son-in-law.
Subject to the de minimis exclusion and the class/subclass exclusion, pursuant to
Section 1103(a) of the Ethics Act, Mr. Manspeaker would have a conflict of interest as
to participating in deliberation(s) or action(s) involving personnel/employment matters
(including but not limited to discipline and promotion) that would financially impact him.
Mr. Manspeaker also generally would have a conflict of interest as to
participating in deliberation(s) or action(s) involving personnel/employment matters
(including but not limited to discipline and promotion) that would affect his
supervisor(s)/superior(s) within the Authority, regardless of union or non-union status,
because such individual(s) would exercise authority over Mr. Manspeaker with respect
to his employment with the Authority. See, Confidential Opinion, 05-004; Elisco,
Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). Likewise,
Mr. Babjak generally would have a conflict of interest as to participating in
deliberation(s) or action(s) involving personnel/employment matters (including but not
limited to discipline and promotion) that would affect his son’s supervisor(s)/superior(s)
within the Authority, regardless of union or non-union status, because such individual(s)
would exercise authority over the son with respect to his employment with the Authority.
Id.
Shimko, 10-559
March 30, 2010
Page 6
In each instance of a conflict of interest, the Board Member(s) with a conflict of
interest 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, the Board Member(s) with a conflict of interest would
be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j)
of the Ethics Act.
In response to your fifth specific question, you are advised as follows.
As to Mr. Kopay, absent some basis for a conflict of interest such as a private
pecuniary benefit to Mr. Kopay, 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 Mr. Kopay from participating in negotiations and actions as
to a new collective bargaining agreement with the Bargaining Unit.
As to Mr. Babjak, Section 1103(a) of the Ethics Act would not prohibit Mr. Babjak
from participating in negotiations and actions as to a new collective bargaining
agreement with the Bargaining Unit that would impact his son, subject to the condition
that the class/subclass exclusion would be applicable. As to Mr. Manspeaker, Section
1103(a) of the Ethics Act would not prohibit Mr. Manspeaker, in his capacity as a Board
Member, from participating in negotiations and actions as to a new collective bargaining
agreement with the Bargaining Unit that would impact him, subject to the condition that
the class/subclass exclusion would be applicable.
It is parenthetically noted that with regard 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
recommended that Mr. Babjak, Mr. Kopay, and Mr. Manspeaker obtain legal advice as
to any potential impact of that Act.
With regard to your sixth specific question, you are advised as follows.
The fact that three Members of the Authority Board would constitute a quorum of
the Board would not enable the quorum itself to be considered a three-Member
governing body for purposes of applying Section 1103(j) of the Ethics Act. The
governing body of the Authority is its five-Member Board.
The exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite
a conflict of interest is available exclusively to members of three-member governing
bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the
Shimko, 10-559
March 30, 2010
Page 7
Ethics Act. See, Pavlovic, Opinion 02-005. Therefore, the Section 1103(j) exception for
breaking a tie vote despite a conflict of interest would not be applicable to a three-
Member quorum of the five-Member Authority Board.
The only Section 1103(j) exception that enables a member of a five-member
board to vote despite a conflict of interest requires that the following conditions be met:
(1) the board must be unable to take any action on the matter before it because the
number of members required to abstain from voting under the provisions of the Ethics
Act makes the majority or other legally required vote of approval unattainable; and (2)
prior to voting, such members with conflicts under the Ethics Act must disclose their
conflicts as required by Section 1103(j). When both of these conditions are met, such
that the exception is applicable, the exception allows for voting only—it does not permit
other forms of participation, such as discussing the matter that is the subject of the vote.
Klutzaritz, Order 1078; Pavlovic, supra.
In order for the first of the above conditions to be met as to the Authority Board,
there would have to be at least three Members of the Board with conflicts of interest
under the Ethics Act. The condition would not be met if only one or two Members of the
Authority Board would have conflicts, or if Members would abstain for reasons other
than a conflict of interest under the Ethics Act. Pavlovic, supra.
Therefore, you are advised that under the submitted facts, where: (1) the
Authority Board consists of five Members; and (2) no more than two of the five Authority
Board Members would have conflicts of interest under the Ethics Act, neither of the
voting conflict exceptions of Section 1103(j) of the Ethics Act would be applicable.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Municipality Authorities
Act or the Public Employee Relations Act.
Conclusion:
As Members of the Board of the West Mifflin Sanitary Sewer
Municipal Authority (“Authority”), Richard M. Babjak (“Mr. Babjak”), Albert J. Kopay, Jr.
(“Mr. Kopay”), and Rick Manspeaker (“Mr. Manspeaker”) are public officials subject to
the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq. As to each Board Member (that is, Mr. Babjak, Mr. Kopay, or Mr.
Manspeaker), pursuant to Section 1103(a) of the Ethics Act, the Board Member
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 Authority
is governed by a five-Member Board; (2) pursuant to the Authority’s By-laws, three
Members of the Board constitute a quorum; (3) Mr. Babjak has a son who is employed
by the Authority; (4) Mr. Kopay has a son-in-law who is employed by the Authority; (5)
Mr. Manspeaker is a recently hired employee of the Authority and is presently serving
his probationary period; (6) Mr. Babjak’s son and Mr. Kopay’s son-in-law are members
of the bargaining unit (“the Bargaining Unit”) that represents the Authority’s employees;
(7) Mr. Manspeaker would become a member of the Bargaining Unit following the
successful completion of his probationary period; (8) Mr. Babjak’s son, Mr. Kopay’s son-
in-law, and Mr. Manspeaker are not union officials or members of the negotiating team
that bargains with the Authority; and (9) the wages paid and benefits given by the
Authority to Mr. Babjak’s son, Mr. Kopay’s son-in-law, and Mr. Manspeaker are set forth
in a collective bargaining agreement between the Authority and the Bargaining Unit, you
are advised as follows.
Subject to the “de minimis exclusion” and the “class/subclass exclusion”
contained within the Ethics Act’s definition of “conflict” or “conflict of interest,” 65
Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Babjak would have a
conflict of interest as to participating in deliberation(s) or action(s) involving
personnel/employment matters (including but not limited to discipline and promotion)
that would financially impact his son. Mr. Kopay’s son-in-law is not a member of his
Shimko, 10-559
March 30, 2010
Page 8
“immediate family” as that term is defined in the Ethics Act. Absent some basis for a
conflict of interest such as a private pecuniary benefit to Mr. Kopay, 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 Mr. Kopay from
participating in deliberations and actions involving personnel/employment matters
(including but not limited to discipline and promotion) related to his son-in-law. Subject
to the de minimis exclusion and the class/subclass exclusion, pursuant to Section
1103(a) of the Ethics Act, Mr. Manspeaker would have a conflict of interest as to
participating in deliberation(s) or action(s) involving personnel/employment matters
(including but not limited to discipline and promotion) that would financially impact him.
Mr. Manspeaker generally would have a conflict of interest as to participating in
deliberation(s) or action(s) involving personnel/employment matters (including but not
limited to discipline and promotion) that would affect his supervisor(s)/superior(s) within
the Authority, regardless of union or non-union status. Mr. Babjak generally would have
a conflict of interest as to participating in deliberation(s) or action(s) involving
personnel/employment matters (including but not limited to discipline and promotion)
that would affect his son’s supervisor(s)/superior(s) within the Authority, regardless of
union or non-union status.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Mr. Kopay, 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 Mr. Kopay from participating in negotiations and actions as to a new collective
bargaining agreement with the Bargaining Unit. Section 1103(a) of the Ethics Act would
not prohibit Mr. Babjak from participating in negotiations and actions as to a new
collective bargaining agreement with the Bargaining Unit that would impact his son,
subject to the condition that the class/subclass exclusion would be applicable. Section
1103(a) of the Ethics Act would not prohibit Mr. Manspeaker, in his capacity as a Board
Member, from participating in negotiations and actions as to a new collective bargaining
agreement with the Bargaining Unit that would impact him, subject to the condition that
the class/subclass exclusion would be applicable.
In each instance of a conflict of interest, the Board Member(s) with a conflict of
interest 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, the Board Member(s) with a conflict of interest would
be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j)
of the Ethics Act.
The fact that three Members of the Authority Board would constitute a quorum of
the Board would not enable the quorum itself to be considered a three-Member
governing body for purposes of applying Section 1103(j) of the Ethics Act. The
governing body of the Authority is its five-Member Board. Under the submitted facts,
where: (1) the Authority Board consists of five Members; and (2) no more than two of
the five Authority Board Members would have conflicts of interest under the Ethics Act,
neither of the voting conflict exceptions of Section 1103(j) of the Ethics Act would be
applicable.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. 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.
Babjak, Mr. Kopay, and Mr. Manspeaker obtain legal advice as to any potential impact
of that 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
Shimko, 10-559
March 30, 2010
Page 9
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