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HomeMy WebLinkAbout12-501 Jones ADVICE OF COUNSEL January 19, 2012 William T. Jones, Esquire 639 Jefferson Avenue Scranton, PA 18510 12-501 Dear Mr. Jones: This responds to your two letters dated December 5, 2011, your four faxed letters received December 13, 2011, and your letter dated January 6, 2012, 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 two borough council members with regard to participating in the interview/selection process and voting on the appointment of a borough manager, where: (1) both of the borough council members are professional employees with the same school district; and (2) a school director for the school district is a candidate for the borough manager position. Facts: As Solicitor for the Borough of Dickson City (“Borough”), you have been authorized by Mr. Horvath and Mr. Kovaleski, each of whom is a Member of Borough Council, to request an advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. Mr. Kovaleski is employed as an Assistant Principal with the Mid Valley School District (“School District”). Mr. Horvath is employed as a teacher with the School District, and he is a member of the union that is represented by a collective bargaining agreement. Mr. Kovaleski and Mr. Horvath each report to a School District Building Administrator who in turn reports to the School District Superintendent of Schools. Borough Council intends to hire a Borough Manager, who may serve at the pleasure of Borough Council or under a contract which defines a limited term and the benefits for said position. An advertisement for the position of Borough Manager was placed, and candidates were interviewed on or about December 8, 2011. You state that Mr. Horvath and Mr. Kovaleski were not involved in the December 8, 2011, candidate interview process. One of the candidates for the position of Borough Manager is a School Director for the School District, hereinafter referred to as the “School District School Director”. You state that Mr. Horvath and Mr. Kovaleski were unaware at the time the aforesaid Jones, 12-501 January 19, 2012 Page 2 advertisement was drafted and placed that the School District School Director would be applying for the Borough Manager position. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Horvath and Mr. Kovaleski to be involved in the interview/selection process and ultimate vote on the appointment of a Borough Manager. You state that Mr. Horvath and Mr. Kovaleski will refrain from involvement in the selection of a Borough Manager pending the issuance of an advisory in response to your inquiry. It is administratively noted that the Public School Code of 1949 as amended empowers a board of school directors to dismiss for cause a “professional employe,” which term is defined to include, in pertinent part, teachers and assistant principals. See, 24 P.S. §§ 11-1101, 11-1122, 11-1127, 11-1129. 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. Horvath and Mr. Kovaleski 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. Jones, 12-501 January 19, 2012 Page 3 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 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. Jones, 12-501 January 19, 2012 Page 4 As to each Borough Council Member on whose behalf you have inquired (that is, Mr. Horvath or Mr. Kovaleski), the Borough Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Borough Council Member, a member of the Borough Council Member’s immediate family, or a business with which the Borough Council Member or a member of his immediate family is associated. Per State Ethics Commission precedent, a public official/public employee generally would have a conflict of interest in matters pertaining to a person who, in a different capacity, has authority or control over the public official/public employee. See, Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). In Confidential Opinion, 05-004, the Commission held that a school director would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to the appointment/employment of a middle school principal for the school district when one of the candidates for the position exercised some administrative authority and influence over the school director as to the latter’s employment as a teacher in a different school district. Similarly, in the instant matter, Mr. Horvath and Mr. Kovaleski as Borough Council Members would exercise authority over the selection and employment of the Borough Manager--a position sought by the School District School Director--while the School District School Director would exercise some authority over Mr. Horvath and Mr. Kovaleski as School District professional employees. The Pennsylvania Supreme Court has held that 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, Pa. , , 22 A.3d 223, 231 (2011). Based upon the above precedents, you are advised that each Borough Council Member on whose behalf you have inquired (that is, Mr. Horvath and Mr. Kovaleski) would have a conflict of interest and would transgress Section 1103(a) of the Ethics Act by participating in the interview/selection process or voting on the appointment of a Borough Manager when the School District School Director would be a candidate for such position, to the extent the Borough Council Member 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 action would constitute one or more specific steps to attain that benefit. Kistler, supra. As noted above, 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. 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. Conclusion: As Members of Council for the Borough of Dickson City (“Borough”), Mr. Horvath and Mr. Kovaleski 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: (1) Mr. Kovaleski is employed as an Assistant Jones, 12-501 January 19, 2012 Page 5 Principal with the Mid Valley School District (“School District”); (2) Mr. Horvath is employed as a teacher with the School District, and he is a member of the union that is represented by a collective bargaining agreement; (3) Mr. Kovaleski and Mr. Horvath each report to a School District Building Administrator who in turn reports to the School District Superintendent of Schools; (4) Borough Council intends to hire a Borough Manager, who may serve at the pleasure of Borough Council or under a contract which defines a limited term and the benefits for said position; (5) an advertisement for the position of Borough Manager was placed, and candidates were interviewed on or about December 8, 2011; (6) Mr. Horvath and Mr. Kovaleski were not involved in the December 8, 2011, candidate interview process; (7) one of the candidates for the position of Borough Manager is a School Director for the School District, hereinafter referred to as the “School District School Director”; and (8) Mr. Horvath and Mr. Kovaleski were unaware at the time the aforesaid advertisement was drafted and placed that the School District School Director would be applying for the Borough Manager position, you are advised as follows. As to each Borough Council Member on whose behalf you have inquired (that is, Mr. Horvath or Mr. Kovaleski), the Borough Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Borough Council Member, a member of the Borough Council Member’s immediate family, or a business with which the Borough Council Member or a member of his immediate family is associated. Each Borough Council Member on whose behalf you have inquired (that is, Mr. Horvath and Mr. Kovaleski) would have a conflict of interest and would transgress Section 1103(a) of the Ethics Act by participating in the interview/selection process or voting on the appointment of a Borough Manager when the School District School Director would be a candidate for such position, to the extent the Borough Council Member 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 action would constitute one or more specific steps to attain that benefit. 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. 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 Jones, 12-501 January 19, 2012 Page 6 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