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HomeMy WebLinkAbout12-583 Klemow ADVICE OF COUNSEL December 31, 2012 Lawrence M. Klemow, Esquire 85 Drasher Road Drums, PA 18222 12-583 Dear Mr. Klemow: This responds to your letters dated November 5, 2012, and November 13, 2012, and your email of December 31, 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: (1) a member and chairman of the board of directors of a city parking authority, who is also the foreman of the streets department of the city, with regard to simultaneously serving as the part-time manager of the city parking authority; or (2) the manager of a city transit authority, who is also the former manager of the city parking authority, with regard to simultaneously serving as the part-time manager of the city parking authority. Facts: You have been authorized by an individual (“Individual 1”) who is a Member and Chairman of the Board of Directors (“Board”) of the Hazleton Parking Authority (“Parking Authority”) and by an individual (“Individual 2”) who is the former Manager of the Parking Authority to request an advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The Parking Authority is responsible for maintaining a parking garage, parking lots, and parking meters within the City of Hazleton (“City”). The Parking Authority was recently notified by the City that the Manager of the Parking Authority was being assigned to a different position with a different agency. In addition to being a Member and Chairman of the Parking Authority Board, Individual 1 is the Foreman of the Streets Department of the City, in which capacity he is a full-time, salaried, non-union employee. Individual 2 is presently serving as the Manager of the Hazleton City Transit Authority. Klemow, 12-583 December 31, 2012 Page 2 You state that in the absence of a full-time Manager, the Parking Authority Board is presently considering appointing either Individual 1 or Individual 2 to serve as a part- time Manager of the Parking Authority. The appointee would be a paid employee of the Parking Authority working during his free time. Based upon the above submitted facts, you pose the following questions: (1) Whether Individual 1 would be permitted to remain on the Parking Authority Board if he would be appointed as the part-time Manager of the Parking Authority; (2) Whether Individual 1 would be permitted to remain the full- time Foreman of the Streets Department if he would be appointed as the part-time Manager of the Parking Authority; and (3) If there would be any conflict with regard to appointing Individual 1 as the part-time Manager of the Parking Authority, whether Individual 2, who is presently the Manager of the Hazleton City Transit Authority, would be permitted to serve as the part-time Manager of the Parking 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. This advisory will first address your questions regarding the proposed appointment of Individual 1 as the part-time Manager of the Parking Authority. As a Member and Chairman of the Parking Authority Board, Individual 1 is a public official 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 Klemow, 12-583 December 31, 2012 Page 3 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 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. Klemow, 12-583 December 31, 2012 Page 4 In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily-declared incompatibility precluding simultaneous service as: (1) a Member and Chairman of the Parking Authority Board and the part-time Manager of the Parking Authority (cf., Swick/Aman, Opinion 91-006 (Ethics Act did not prohibit an authority board member from simultaneously serving as an authority employee merely because the Municipality Authorities Act did not expressly authorize such simultaneous service); 53 Pa.C.S. § 5505(d)(8), 5508(e)); or (2) the Foreman of the Streets Department of the City and the part-time Manager of the Parking Authority. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. See, McCain, Opinion 02-009. Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Individual 1’s proposed simultaneous service as: (1) a Member and Chairman of the Parking Authority Board and the part-time Manager of the Parking Authority; and (2) the Foreman of the Streets Department of the City and the part-time Manager of the Parking Authority. This Advice is expressly conditioned upon such simultaneous service occurring within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act and upon Individual 1 performing the duties of the aforesaid positions without an overlap of time. Cf., Bornstein, Order 1463; Quinn, Advice 11-528; Confidential Advice, 10-602; Laub, Advice 06-519. You are further advised that Individual 1, in his capacity as a Member and Chairman of the Parking Authority Board, would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in or voting in favor of the appointment of himself to the position of part-time Manager of the Parking Authority. Cf., Swick/Aman, supra. If appointed as the part-time Manager of the Parking Authority, Individual 1 generally would have a conflict of interest in matter(s) before the Parking Authority Board pertaining to the part-time or full-time position of Manager of the Parking Authority. In each instance of a conflict of interest, Individual 1 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. Your question regarding the proposed appointment of Individual 2 as the part- time Manager of the Parking Authority shall next be addressed. As the Manager of the Hazleton City Transit Authority, Individual 2 would be considered a public employee subject to the Ethics Act. To the extent Individual 2 was a public employee in the former capacity as the Manager of the Parking Authority, Section 1103(g) of the Ethics Act--which generally prohibits a former “public official” or former “public employee” from contracting with his Klemow, 12-583 December 31, 2012 Page 5 former governmental body during the first year following termination of public service (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005)-- would not prohibit Individual 2 from accepting an employmentposition as the part-time Manager of the Parking Authority. Cf., Confidential Opinion, 93-005; Long, Opinions 97- 010 and 97-010-R; McGlathery, Opinion 00-004. You are advised that there does not appear to be any statutorily-declared incompatibility precluding simultaneous service as the Manager of the Hazleton City Transit Authority and the part-time Manager of the Parking Authority. You are further advised that based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude Individual 2’s proposed simultaneous service in the aforesaid positions. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. This Advice is expressly subject to the condition that Individual 2 would perform the duties of the aforesaid positions without an overlap of time. Cf., Bornstein, supra; Quinn, supra; Confidential Advice, 10-602; Laub, supra. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) the Hazleton Parking Authority (“Parking Authority”) is responsible for maintaining a parking garage, parking lots, and parking meters within the City of Hazleton (“City”); (2) the Parking Authority was recently notified by the City that the Manager of the Parking Authority was being assigned to a different position with a different agency; (3) an individual (“Individual 1”) who is a Member and Chairman of the Board of Directors (“Board”) of the Parking Authority is also the Foreman of the Streets Department of the City, in which capacity he is a full-time, salaried, non-union employee; (4) an individual (“Individual 2”) who is presently the manager of the Hazleton City Transit Authority is also the former Manager of the Parking Authority; (5) in the absence of a full-time Manager, the Parking Authority Board is presently considering appointing either Individual 1 or Individual 2 to serve as a part-time Manager of the Parking Authority; and (6) the appointee would be a paid employee of the Parking Authority working during his free time, you are advised as follows. As a Member and Chairman of the Parking Authority Board, Individual 1 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. Subject to the restrictions, conditions and qualifications set forth above, Individual 1 may simultaneously serve as: (1) a Member and Chairman of the Parking Authority Board and the part-time Manager of the Parking Authority; and (2) the Foreman of the Streets Department of the City and the part-time Manager of the Parking Authority. This Advice is expressly conditioned upon such simultaneous service occurring within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act and upon Individual 1 performing the duties of the aforesaid positions without an overlap of time. Individual 1, in his capacity as a Member and Chairman of the Parking Authority Board, would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in or voting in favor of the appointment of himself to the position of part-time Manager of the Parking Authority. If appointed as the part-time Manager of the Parking Authority, Individual 1 generally would have a conflict of interest in matter(s) before the Parking Authority Board pertaining to the part-time or full-time position of Manager of the Parking Authority. In each instance of a conflict of interest, Individual 1 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. As the Manager of the Hazleton City Transit Authority, Individual 2 would be considered a public employee subject to the Ethics Act. To the extent Individual 2 was Klemow, 12-583 December 31, 2012 Page 6 a public employee in the former capacity as the Manager of the Parking Authority, Section 1103(g) of the Ethics Act would not prohibit Individual 2 from accepting an employmentposition as the part-time Manager of the Parking Authority. Subject to the restrictions, conditions and qualifications set forth above, Individual 2 may simultaneously serve as the Manager of the Hazleton City Transit Authority and the part-time Manager of the Parking Authority. This Advice is expressly subject to the condition that Individual 2 would perform the duties of the aforesaid positions without an overlap of time. 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 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