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HomeMy WebLinkAbout10-559-S Shimko ADVICE OF COUNSEL July 19, 2011 William F. Shimko, Esquire Mike Adams & Associates, LLC 55 Old Clairton Road Suite 206 Pittsburgh, PA 15236 10-559-S Dear Mr. Shimko: This responds to your letter dated June 10, 2011, by which you requested supplemental advice 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 an individual serving as a member of a municipal authority board, who is also an employee of the authority and a member of the bargaining unit that represents the authority’s employees, with regard to participating as an authority board member in deliberations or actions involving personnel/employment matters--including but not limited to the hiring, termination, promotion or discipline of union or non-union personnel--in situations that would not necessarily include the individual’s supervisor(s)/superior(s) within the authority. Facts: You are Solicitor for the West Mifflin Sanitary Sewer Municipal Authority (“Authority”). On March 30, 2010, Shimko, Advice of Counsel 10-559, was issued to you on behalf of Authority Board Members Richard M. Babjak (“Mr. Babjak”), Albert J. Kopay, Jr. (“Mr. Kopay”), and Rick Manspeaker (“Mr. Manspeaker”). You have been authorized by Mr. Manspeaker to request a supplemental advisory from the Pennsylvania State Ethics Commission on his behalf. Your initial advisory request presented facts that were summarized in the Advice of Counsel, in pertinent part, as follows: 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 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 Shimko, 10-559-S July 19, 2011 Page 2 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. Shimko, Advice of Counsel 10-559, at 1-2. Based upon the above submitted facts, you posed six questions, including in pertinent part 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. Advice of Counsel 10-559 determined that Mr. Manspeaker is a public official subject to the Ethics Act. The Advice further determined that Mr. Manspeaker 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. Advice of Counsel 10-559 concluded, inter alia, that 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, because such individual(s) would exercise authority over Mr. Manspeaker with respect to his employment with the Authority. The Advice further concluded that in each instance of a conflict of interest, Mr. Manspeaker would be required to abstain fully from participation and in each instance of a voting conflict, to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In your June 10, 2011, advisory request letter, you state that Mr. Manspeaker has successfully completed his probationary period and that he is now fully protected by the collective bargaining agreement between the Authority and the bargaining unit (“the Bargaining Unit”) that represents the Authority’s employees. You state that Mr. Manspeaker is effectively the second-least senior member of the Bargaining Unit. You request supplemental advice as to whether the Ethics Act would permit Mr. Manspeaker to participate as an authority board member in deliberations or actions involving personnel/employment matters--including but not limited to the hiring, termination, promotion or discipline of union or non-union personnel--in situations that would not necessarily include Mr. Manspeaker’s supervisor(s)/superior(s) within the authority. 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 Shimko, 10-559-S July 19, 2011 Page 3 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 an Authority Board Member, Mr. Manspeaker 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. This Supplemental Advice incorporates herein by reference the quotations, citations and commentary as to the Ethics Act set forth within Shimko, Advice of Counsel 10-559. In response to your request for supplemental advice, you are advised as follows. In order to violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Kistler v. State Ethics Commission, No. 59 MAP 2009, slip op. at 12 (Pa. June 22, 2011). Therefore, Mr. Manspeaker would not have a conflict of interest or transgress Section 1103(a) of the Ethics Act by participating in deliberation(s) or action(s) involving personnel/employment matters--including but not limited to the hiring, termination, promotion or discipline of union or non-union personnel--that would not affect his supervisor(s)/superior(s) within the Authority unless he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, and his official action would constitute one or more specific steps to attain that benefit. Cf., Filbey, Advice 06-569. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of the Board of the West Mifflin Sanitary Sewer Municipal Authority (“Authority”), Rick Manspeaker (“Mr. Manspeaker”) 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 additional submitted facts that: (1) Mr. Manspeaker has successfully completed his probationary period, and he is now fully protected by the collective bargaining agreement between the Authority and the bargaining unit (“the Bargaining Unit”) that represents the Authority’s employees; and (2) Mr. Manspeaker is effectively the second-least senior member of the Bargaining Unit, you are advised as follows. Mr. Manspeaker would not have a conflict of interest or transgress Section 1103(a) of the Ethics Act by participating in deliberation(s) or action(s) involving personnel/employment matters--including but not limited to the hiring, termination, promotion or discipline of union or non-union personnel--that would not affect his supervisor(s)/superior(s) within the Authority unless he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, and his official action would constitute one or more specific steps to attain that benefit. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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. Shimko, 10-559-S July 19, 2011 Page 4 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