HomeMy WebLinkAbout12-569 Warren
ADVICE OF COUNSEL
October 22, 2012
Joseph Warren
103 Western Avenue
Apt. A
Aspinwall, PA 15215
12-569
Dear Mr. Warren:
This responds to your letter of September 5, 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 a borough
council member with regard to continuing to serve on borough council while being an
applicant for the position of borough manager.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Member of Council for the Borough of Aspinwall (“Borough”). The
current Borough Manager, who is considering retirement, approached you about being
a potential replacement for the position of Borough Manager. The Borough Council
President and one other Borough Council Member are aware that you were approached
with regard to the Borough Manager position. You state that you consider yourself to be
a candidate for the position of Borough Manager. You express your understanding that:
(1) you have a conflict of interest in any vote, deliberation or discussion concerning the
retirement of the current Borough Manager and the hiring of a replacement; and (2) the
Borough Code would require you to resign from Borough Council prior to accepting the
Borough Manager position.
The narrow question that you have posed is whether the Ethics Act would
impose any restrictions upon you with regard to continuing to serve on Borough Council
while you would be an applicant for the position of Borough Manager.
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
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October 22, 2012
Page 2
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.
It is further initially noted that p ursuant to Sections 1107(10) and 1107(11) of the
Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion/advice may be given only as to
prospective (future) conduct. If the activity in question has already occurred, the
Commission may not issue an opinion/advice but any person may then submit a signed
and sworn complaint, which will be investigated by the Commission if there are
allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the
extent you have inquired as to conduct that has already occurred, such past conduct
may not be addressed in the context of an advisory opinion. However, to the extent you
have inquired as to future conduct, your inquiry may, and shall, be addressed.
As a Member of Borough Council, you are a public official as that term is defined
by the Ethics Act, and therefore you are 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
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October 22, 2012
Page 3
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.
In applying the above provisions of the Ethics Act to the particular question you
have posed, you are advised as follows.
Section 1103(a) of the Ethics Act would prohibit you from using the authority of
your current public position as a Borough Council Member or confidential information
received by being a Borough Council Member to advance an opportunity of employment
with the Borough. In your capacity as a Borough Council Member, you generally would
have a conflict of interest in matters pertaining to the hiring of a Borough Manager given
your intention to apply for said position. Such matters would include but would not be
limited to determining the necessary qualifications for the position of Borough Manager,
reviewing applications, or screening or interviewing applicants.
In each instance of a conflict of interest, you would be required to abstain fully
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.
Subject to the condition that there would be no use of authority of your position
as a Borough Council Member or confidential information received by being in such
position to advance the prospects of your obtaining employment as the Borough
Manager, Section 1103(a) of the Ethics Act would not prohibit you from continuing to
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October 22, 2012
Page 4
serve as a Borough Council Member while you would be an applicant for the position of
Borough Manager.
This Advice is limited to addressing the narrow question posed 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 a Member of Council for the Borough of Aspinwall (“Borough”),
you are 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 current Borough Manager, who is considering retirement, approached you
about being a potential replacement for the position of Borough Manager; (2) the
Borough Council President and one other Borough Council Member are aware that you
were approached with regard to the Borough Manager position; and (3) you consider
yourself to be a candidate for the position of Borough Manager, you are advised as
follows.
Section 1103(a) of the Ethics Act would prohibit you from using the authority of
your current public position as a Borough Council Member or confidential information
received by being a Borough Council Member to advance an opportunity of employment
with the Borough. In your capacity as a Borough Council Member, you generally would
have a conflict of interest in matters pertaining to the hiring of a Borough Manager given
your intention to apply for said position. Such matters would include but would not be
limited to determining the necessary qualifications for the position of Borough Manager,
reviewing applications, or screening or interviewing applicants. In each instance of a
conflict of interest, you would be required to abstain fully 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. Subject to the
condition that there would be no use of authority of your position as a Borough Council
Member or confidential information received by being in such position to advance the
prospects of your obtaining employment as the Borough Manager, Section 1103(a) of
the Ethics Act would not prohibit you from continuing to serve as a Borough Council
Member while you would be an applicant for the position of Borough Manager. Lastly,
this Advice is limited to addressing the narrow question posed 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
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October 22, 2012
Page 5
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