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Home My WebLink About11-524 Molnar & Ceraul ADVICE OF COUNSEL May 10, 2011 John Molnar, Esquire David J. Ceraul, Esquire The Molnar Law Offices 22 Market Street Wind Gap Professional Center P.O. Box 19 Routes 33 & 512 Bangor, PA 18013 6697 Sullivan Trail Wind Gap, PA 18091 11-524 Dear Mr. Molnar and Mr. Ceraul: This responds to Mr. Molnar’s letters dated March 18, 2011, and March 22, 2011, and Mr. Ceraul’s two letters dated March 24, 2011, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., two borough council members, both of whom are employed with the same municipal authority, would each have a conflict of interest with regard to voting on the appointment of member(s) of the municipal authority board, and if so, whether the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would permit the two borough council members to break a tie vote by borough council. Facts: In your respective roles as Solicitor for the Bangor Borough Authority (“Authority”) and Solicitor for Bangor Borough (“Borough”), each of you has been authorized by Mark Brown (“Mr. Brown”) and Marino Saveri (“Mr. Saveri”) to request an advisory from the Pennsylvania State Ethics Commission on their behalf. Mr. Brown and Mr. Saveri are both Members of Borough Council and employees of the Authority. You pose the following questions: (1) Whether Mr. Brown and Mr. Saveri would each have a conflict of interest with regard to voting on the appointment of Member(s) of the Authority Board at Borough Council meeting(s); and (2) If Mr. Brown and Mr. Saveri would each have a conflict of interest in voting on the appointment of Member(s) of the Authority Board, whether the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would permit Mr. Brown and Mr. Saveri to break a tie vote by Borough Council. It is administratively noted that Borough Council is comprised of eight Members. Molnar/Ceraul, 11-524 May 10, 2011 Page 2 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 Borough Council Members, Mr. Brown and Mr. Saveri are public officials 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 Molnar/Ceraul, 11-524 May 10, 2011 Page 3 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. 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 use of authority of office is not limited merely to voting, but extends 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. In each instance of a conflict of interest, a public official/public employee 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. In applying the above provisions of the Ethics Act to the instant matter, you are advised that as to each Borough Council Member on whose behalf you have inquired (that is, Mr. Brown or Mr. Saveri), the Borough Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough Council pertaining to the Authority Board Member(s) because such individual(s) would exercise authority over the Borough Council Member 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); cf., Arnold, Advice 09-502; Genard, Advice 07-601; Welsh, Advice 02-537. In particular, Mr. Brown and Mr. Severi would each have a conflict of interest as to the nomination, appointment, or reappointment by Borough Council of Member(s) of the Authority Board. In each instance of a conflict of interest, the Borough Council Member(s) with the conflict would be required to abstain from participation, which would include voting unless a statutory exception 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. You are further advised that because Borough Council is comprised of eight Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit the Borough Council Member(s) with a conflict to vote because such exception 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 Ethics Act. See, Pavlovic, Opinion 02-005. Molnar/Ceraul, 11-524 May 10, 2011 Page 4 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 Borough Code or the Municipality Authorities Act. Conclusion: As Borough Council Members for Bangor Borough (“Borough”), Mark Brown (“Mr. Brown”) and Marino Saveri (“Mr. Saveri”) are public officials 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 Mr. Brown and Mr. Saveri are both employed with the Bangor Borough Authority (“Authority”), you are advised as follows. As to each Borough Council Member on whose behalf you have inquired (that is, Mr. Brown or Mr. Saveri), the Borough Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough Council pertaining to the Authority Board Member(s) because such individual(s) would exercise authority over the Borough Council Member with respect to his employment with the Authority. In particular, Mr. Brown and Mr. Severi would each have a conflict of interest as to the nomination, appointment, or reappointment by Borough Council of Member(s) of the Authority Board. In each instance of a conflict of interest, the Borough Council Member(s) with the conflict would be required to abstain from participation, which would include voting unless a statutory exception 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. Because Borough Council is comprised of eight Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit the Borough Council Member(s) with a conflict to vote because such exception 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 Ethics Act. 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 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