HomeMy WebLinkAbout11-543 Pollock
ADVICE OF COUNSEL
July 27, 2011
David F. Pollock, Esquire
Pollock Morris, LLC
54 South Washington Street
Waynesburg, PA 15370
11-543
Dear Mr. Pollock:
This responds to your letter dated July 6, 2011, 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 member of
a municipal water authority board, who is also a managerial employee of the authority,
with regard to voting on a cell phone policy that would cover the union and managerial
employees of the authority.
Facts:
As Solicitor for a municipal water authority (hereinafter referred to as “the
Authority”) located in southwestern Pennsylvania, you request an advisory from the
Pennsylvania State Ethics Commission on behalf of an Authority Board Member
(hereinafter referred to as “the Board Member”). You have submitted facts that may be
fairly summarized as follows.
The Board Member is a managerial employee of the Authority. The Authority is
in the process of preparing a cell phone policy that would cover the union and
managerial employees of the Authority.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit the Board Member to vote on a cell phone policy that would cover the union and
managerial employees of 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
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.
Pollock, 11-543
July 27, 2011
Page 2
As a Member of the Authority Board, the Board Member on whose behalf you
have inquired is a public official subject to 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
with which he or a member of his immediate family is
associated.
Pollock, 11-543
July 27, 2011
Page 3
"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 submitted facts, 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, the Board Member would not have a conflict
of interest or transgress Section 1103(a) of the Ethics Act by voting on a cell phone
policy that would cover the union and managerial employees of 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.
Even if, by voting on a cell phone policy that would cover the union and
managerial employees of the Authority, the Board Member would be taking official
action to attain such a pecuniary benefit, he nevertheless would not transgress Section
1103(a) of the Ethics Act if one of the two exclusions to the statutory definition of the
term "conflict" or "conflict of interest" (referred to herein as the "de minimis exclusion"
and the "class/subclass exclusion") would be applicable. Based upon the submitted
facts, it cannot be conclusively determined whether either of the exclusions would be
applicable. Therefore, this advisory must be limited to providing the following general
guidance as to the exclusions.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. See, Kolb, Order 1322;
Schweinsburg, Order 900. The Commission determines the applicability of the de
minimis exclusion on a case-by-case basis, considering all relevant circumstances. In
the past, the Commission has found amounts ranging from $2 to approximately $500 to
be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth.
2004).
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
Pollock, 11-543
July 27, 2011
Page 4
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 order for the class/subclass exclusion to apply under the
submitted facts, the Board Member would have to be part of an appropriate subclass
that would include at least one other Authority employee: (1) who would be similarly
situated as the result of relevant shared characteristics; (2) who would not be an
immediate family member of the Board Member; and (3) who would be reasonably
affected to the same degree by the Authority’s action as to the cell phone policy that
would cover the union and managerial employees of the Authority. Kablack, supra.
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 Municipality Authorities Act.
Conclusion:
The municipal water authority (“the Authority”) Board Member on
whose behalf you have inquired (“the Board Member”) 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) the Board Member is a
managerial employee of the Authority; and (2) the Authority is in the process of
preparing a cell phone policy that would cover the union and managerial employees of
the Authority, you are advised as follows. The Board Member would not have a conflict
of interest or transgress Section 1103(a) of the Ethics Act by voting on a cell phone
policy that would cover the union and managerial employees of 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. Even if, by voting on a cell phone policy that would cover the union and
managerial employees of the Authority, the Board Member would be taking official
action to attain such a pecuniary benefit, he nevertheless would not transgress Section
1103(a) of the Ethics Act if one of the two exclusions to the statutory definition of the
term "conflict" or "conflict of interest" (referred to herein as the "de minimis exclusion"
and the "class/subclass exclusion") would be applicable. Based upon the submitted
facts, it cannot be conclusively determined whether either of the exclusions would be
applicable. Generally, t he de minimis exclusion precludes a finding of conflict of interest
as to an action having a de minimis (insignificant) economic impact. In order for the
class/subclass exclusion to apply under the submitted facts, the Board Member would
have to be part of an appropriate subclass that would include at least one other
Authority employee: (1) who would be similarly situated as the result of relevant shared
characteristics; (2) who would not be an immediate family member of the Board
Member; and (3) who would be reasonably affected to the same degree by the
Authority’s action as to the cell phone policy that would cover the union and managerial
employees of the Authority. 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
Pollock, 11-543
July 27, 2011
Page 5
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