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HomeMy WebLinkAbout10-592 Confidential ADVICE OF COUNSEL June 29, 2010 10-592 This responds to your letters dated May 14, 2010, and May 18, 2010, by which you requested a confidential 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 impose any prohibitions or restrictions upon a borough council member with regard to voting on the appointment of a borough solicitor where a Relative A and a Relative B of the borough council member are employed as attorneys with a law firm that seeks appointment to the position of borough solicitor. Facts: You are a partner with the law firm of [name of law firm] (“the Firm”), which currently serves as Solicitor for [name of borough] (“the Borough”). You have been authorized by Borough Council Member Individual C to request a confidential advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Individual C became a Borough Council Member in [month, year]. The Firm was appointed as Borough Solicitor in [month, year]. Individual D, who is an associate with the Firm, is a Relative A of Individual C, and Individual E, who is a partner with the Firm, is a Relative B of Individual C. You state that Individual C abstained from the vote to appoint the Firm as Borough Solicitor and noted on the record his familial relationship to the aforesaid Firm members. You state that Borough Council simultaneously subjected the position of Solicitor to the request for proposal process when the Firm was appointed as Solicitor in [month, year]. The Firm and other law firms have submitted proposals for the position of Borough Solicitor. You state that Individual C has no pecuniary interest in the Firm and does not stand to receive or lose any personal financial interest if the Firm would be appointed or removed as Borough Solicitor. Based upon the above submitted facts, you ask whether the Ethics Act would permit Individual C to vote on the proposals submitted by the Firm and other law firms for the position of Borough Solicitor. 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 Confidential Advice, 10-592 June 29, 2010 Page 2 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 Borough Council Member, Individual C is a public official as that term is defined in the Ethics Act, and therefore he is 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 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 Confidential Advice, 10-592 June 29, 2010 Page 3 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 advocating 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 applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Individual C would have a conflict of interest in matters before Borough Council 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. Individual C’s Relative A and Relative B are not members of his “immediate family” as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 (1998) (Holding that a relative not encompassed by the family relationships listed in the Ethics Act’s definition of the term “immediate family”—in that case, an in-law—would not be considered a member of immediate family). Since Individual C’s Relative A and Relative B are not members of his immediate family, Individual C would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact his Relative A or Relative B but that would not financially impact Individual C, 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 Individual C, 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 Individual C from voting on the proposals submitted by the Firm and other law firms for the position of Borough Solicitor. Confidential Advice, 10-592 June 29, 2010 Page 4 The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of Council for [name of borough] (“the Borough”), Individual C 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 that: (1) Individual C became a Borough Council Member in [month, year]; (2) the law firm of [name of law firm] (“the Firm”) was appointed as Borough Solicitor in [month, year]; (3) Individual D, who is an associate with the Firm, is a Relative A of Individual C, and Individual E, who is a partner with the Firm, is a Relative B of Individual C; (4) Individual C abstained from the vote to appoint the Firm as Borough Solicitor and noted on the record his familial relationship to the aforesaid Firm members; (5) Borough Council simultaneously subjected the position of Solicitor to the request for proposal process when the Firm was appointed as Solicitor in [month, year]; (6) the Firm and other law firms have submitted proposals for the position of Borough Solicitor; and (7) Individual C has no pecuniary interest in the Firm and does not stand to receive or lose any personal financial interest if the Firm would be appointed or removed as Borough Solicitor, you are advised as follows. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Individual C would have a conflict of interest in matters before Borough Council 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. Individual C’s Relative A and Relative B are not members of his “immediate family” as that term is defined in the Ethics Act. Since Individual C’s Relative A and Relative B are not members of his immediate family, Individual C would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact his Relative A or Relative B but that would not financially impact Individual C, 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 Individual C, 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 Individual C from voting on the proposals submitted by the Firm and other law firms for the position of Borough Solicitor. 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. 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 Confidential Advice, 10-592 June 29, 2010 Page 5 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