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HomeMy WebLinkAbout10-606 Nietupski ADVICE OF COUNSEL August 27, 2010 Gery T. Nietupski, Esquire 818 State Street Suite A Erie, PA 16501 10-606 Dear Mr. Nietupski: This responds to your letter dated July 13, 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 impose any prohibitions or restrictions upon a borough council member, who is a co-plaintiff with his spouse in a civil rights lawsuit against the borough and two of the borough’s police officers, with regard to being present when matters concerning the borough police department but unrelated to said lawsuit would be discussed by the borough council. Facts: You have been authorized by Gerald Hordych (“Mr. Hordych”), a Member of Council for the Borough of North East (“Borough”), to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. Mr. Hordych and his spouse, Lori Hordych, are the plaintiffs in a civil rights lawsuit (“the Litigation”) against the Borough and two of the Borough’s police officers. You state that the Litigation is currently at the mediation stage. You ask whether Mr. Hordych may be present in his capacity as a Borough Council Member when matters concerning the Borough Police Department but unrelated to the Litigation are discussed by Borough Council. You state that Mr. Hordych believes that he cannot vote on such matters. 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. Nietupski, 10-606 August 27, 2010 Page 2 It is further initially noted that this Advice is limited to addressing the narrow question posed. As a Borough Council Member, Mr. Hordych 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 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 Nietupski, 10-606 August 27, 2010 Page 3 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. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your inquiry, you are advised that generally, when a public official is involved in litigation, matters pertaining to or affecting the litigation or a party to the litigation present a conflict of interest for the public official. See, DeLano, Opinion 88-008; Golla, Opinion 88-004; cf., McCullough, Advice 07-534; Oswalt, Advice 07-524; Hiscott, Advices 06-517 and 06-517-S. Subject to the statutory exceptions 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, Mr. Hordych would have a conflict of interest in his capacity as a Borough Council Member in matters pertaining to the Litigation or to individuals who are parties to the Litigation. In each instance of a conflict of interest, Mr. Hordych would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(a) of the Ethics Act would not prohibit Mr. Hordych from being present at any public meeting of Borough Council. Section 1103(a) of the Ethics Act would not prohibit Mr. Hordych from being present at an executive session of Borough Council where matter(s) pertaining to the Borough Police Department but unrelated to the Litigation would be discussed, subject to the condition that he would not use any information obtained during such executive session in furtherance of the Litigation. 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 the Borough of North East (“Borough”), Gerald Hordych (“Mr. Hordych”) 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) Mr. Hordych and his spouse, Lori Hordych, are the plaintiffs in a civil rights lawsuit (“the Litigation”) against the Borough and two of the Borough’s police officers; and (2) the Litigation is currently at the mediation stage, you are advised as follows. Subject to the statutory exceptions 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, Mr. Hordych would have a conflict of interest in his capacity as a Borough Council Member in matters pertaining to the Litigation or to individuals who are parties to the Litigation. In each instance of a conflict of interest, Mr. Hordych would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(a) of the Ethics Act would not prohibit Mr. Hordych from being present at any public meeting of Borough Council. Section 1103(a) of the Ethics Act would not prohibit Mr. Hordych from being present at an executive session of Borough Council where matter(s) pertaining to the Borough Police Department but unrelated to the Litigation would be discussed, subject to the condition that he would not use any information obtained during such executive session in furtherance of the Litigation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Nietupski, 10-606 August 27, 2010 Page 4 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