HomeMy WebLinkAbout11-557
ADVICE OF COUNSEL
October 20, 2011
Michael P. Clarke, Esquire
Rudolph, Clarke & Kirk, LLC
Eight Neshaminy Interplex
Suite 215
Trevose, PA 19053
11-557
Dear Mr. Clarke:
This responds to your letter dated September 8, 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 an individual
serving as a township council member with regard to participating in labor contract
negotiations between the township and the union that represents the township police
department, or voting on such a labor contract covering the township police department,
when: (1) the township council member is a former police officer with the township
police department and a current member of the union; and (2) the individual’s pension
as a former township police officer could increase if the union and the township would
negotiate a cost of living increase into the new labor contract.
Facts:
You have been authorized by Dean N. Eisenberger, Sr. (“Mr.
Eisenberger”) to request an advisory from the Pennsylvania State Ethics Commission
on his behalf. You have submitted facts that may be fairly summarized as follows.
Mr. Eisenberger is a Township Council Member for Plymouth Township
(“Township”), located in Montgomery County, Pennsylvania. The Township is governed
by a five-member Council pursuant to the Township’s Home Rule Charter.
Mr. Eisenberger is a former police officer with the Township Police Department
and is currently a member of the union (“Union”) that represents the Township Police
Department. You state that Mr. Eisenberger’s pension as a former Township police
officer could increase if the Union and the Township Council would negotiate a cost of
living increase into a new labor contract (“Labor Contract”) covering the Township
Police Department.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit Mr. Eisenberger as a Township Council Member to participate in negotiations
pertaining to the Labor Contract or vote on the Labor Contract.
Clarke, Advice 11-557
October 20, 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 a Member of Township Council, Mr. Eisenberger 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
Clarke, Advice 11-557
October 20, 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.
It is noted that the above statutory definition of "conflict" or "conflict of interest"
contains two exclusions, referred to herein as the "de minimis exclusion" and the
"class/subclass exclusion."
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
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
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.
Clarke, Advice 11-557
October 20, 2011
Page 4
In Davison, Opinion 08-006, the Commission held that Section 1103(a) of the
Ethics Act would allow a public official/public employee to participate in negotiations for
a collective bargaining agreement covering or impacting an immediate family member
subject to the condition that the class/subclass exclusion would be applicable. Id., at 5
(overruling Van Rensler, Opinion 90-017, to the limited extent it was inconsistent with
the Commission’s holding). The Commission noted that there may be uncertainty as to
the direction negotiations will take during the process of negotiating a collective
bargaining agreement, and the Commission generally advised that where the
class/subclass exclusion initially would apply to permit a public official/public employee
to participate in negotiations for a collective bargaining agreement covering or impacting
an immediate family member, the public official/public employee would have to remain
cognizant as to whether developments during the negotiating process would render the
class/subclass exclusion no longer applicable, such that the public official/public
employee would be required to abstain from further participation in the negotiations.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that Section 1103(a) of the Ethics Act would not prohibit Mr. Eisenberger, in his
capacity as a Member of Township Council, from participating in negotiations pertaining
to the Labor Contract or from voting on the Labor Contract, subject to the condition that
the class/subclass exclusion would be applicable as to any impact upon Mr.
Eisenberger.
It is parenthetically noted that with regard to the collective bargaining process,
the Public Employee Relations Act provides as follows:
§ 1101.1801. Conflict of interest
(a) No person who is a member of the same local,
State, national or international organization as the employe
organization with which the public employer is bargaining or
who has an interest in the outcome of such bargaining which
interest is in conflict with the interest of the public employer,
shall participate on behalf of the public employer in the
collective bargaining processes with the proviso that such
person may, where entitled, vote on the ratification of an
agreement.
(b) Any person who violates subsection (a) of this
section shall be immediately removed by the public employer
from his role, if any, in the collective bargaining negotiations
or in any matter in connection with such negotiations.
43 P.S . § 1101.1801. Since the State Ethics Commission does not have the statutory
jurisdiction to administer or interpret the Public Employee Relations Act, it is
recommended that Mr. Eisenberger obtain legal advice as to any potential impact of that
Act.
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 Township’s Home Rule Charter or the Public Employee Relations Act.
Conclusion:
As a Township Council Member for Plymouth Township
(“Township”), located in Montgomery County, Pennsylvania, Dean N. Eisenberger, Sr.
(“Mr. Eisenberger”) 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. Eisenberger is a former police officer with the Township
Clarke, Advice 11-557
October 20, 2011
Page 5
Police Department and is currently a member of the union (“Union”) that represents the
Township Police Department; and (2) Mr. Eisenberger’s pension as a former Township
police officer could increase if the Union and the Township Council would negotiate a
cost of living increase into a new labor contract (“Labor Contract”) covering the
Township Police Department, you are advised as follows. Section 1103(a) of the Ethics
Act would not prohibit Mr. Eisenberger, in his capacity as a Member of Township
Council, from participating in negotiations pertaining to the Labor Contract or from
voting on the Labor Contract, subject to the condition that the class/subclass exclusion
would be applicable as to any impact upon Mr. Eisenberger.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Township’s
Home Rule Charter or the Public Employee Relations 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