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HomeMy WebLinkAbout13-526 Confidential ADVICE OF COUNSEL May 3, 2013 13-526 This responds to your letters of February 19, 2013 and March 11, 2013, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., an individual who simultaneously serves as an uncompensated member of: (1) an A; (2) a B; and (3) a C would be permitted to seek employment with the municipality in which the individual resides, municipalities that comprise or are members of the D, municipalities that are members of the C, or the agencies that provide staff to the A, B, or C; and if so, whether the Ethics Act would limit the ability of the individual to represent such employer before the aforesaid bodies. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You currently serve as an uncompensated member of: (1) [name of A]; (2) [name of B]; and (3) [name of C]. You state that the A and B are advisory boards and that the C provides E for Fs. You ask whether the Ethics Act would permit you to seek employment with the municipality in which you reside, municipalities that comprise or are members of the D, municipalities that are members of the C, or the agencies that provide staff to the A, B, or C. To the extent you would be permitted to seek such employment, you further inquire as to whether the Ethics Act would limit your ability to represent such employer before the aforesaid bodies. It is noted that the submitted facts do not identify the particular employment position you would like to accept. It is further noted that you have submitted copies of various ordinances and agreements relating to the aforesaid bodies. It is administratively noted that per your submissions and the web site of Political Subdivision G, the A consists of [number] Members. Confidential Advice, 13-526 May 3, 2013 Page 2 Discussion: 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 Advice assumes, without deciding, that in one or more of your capacities as a Member of: (1) A; (2) B; and (3) C, you are 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 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 Confidential Advice, 13-526 May 3, 2013 Page 3 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 addition, 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. Code H provides, in part, as follows: [quote and cite]. Additionally, the following restriction appears to apply to Is such as B on which you serve: [quote and cite]. In applying the provisions of the Ethics Act to your first question, you are advised that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. Based upon the submitted facts, there does not appear to be any statutorily-declared incompatibility specifically prohibiting simultaneous service in your aforesaid current positions and as an employee of the municipality in which you reside, municipalities that comprise or are members of the D, municipalities that are members of the C, or the agencies that provide staff to the A, B, Confidential Advice, 13-526 May 3, 2013 Page 4 or C. However, it is recommended that you seek legal advice as to the applicability of [cite] and [cite] to your proposed employment. Turning to the question of conflict of interest, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. 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). 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 which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service in your aforesaid current positions and as an employee of the municipality in which you reside, municipalities that comprise or are members of the D, municipalities that are members of the C, or the agencies that provide staff to the A, B, or C. Consequently, such simultaneous service generally would be permitted within the parameters of Sections 1103(a) and 1103(j). However, it is recommended that upon determining which particular employment position you would like to accept, you seek further advice to ensure that simultaneous service would not be prohibited as to that particular employment position. In response to your second question, you are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not limit your ability to represent a governmental employer before the aforesaid bodies. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: This Advice assumes, without deciding, that in one or more of your capacities as a Member of: (1) [name of A]; (2) [name of B]; and (3) [name of C], 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. Generally, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in your aforesaid current positions and as an employee of the municipality in which you reside, municipalities that comprise or are members of the D, municipalities that are members of the C, or the agencies that provide staff to the A, B, or C. However, it is recommended that you seek legal advice as to the applicability of [cite] and [cite] to your proposed employment. Additionally, it is recommended that upon determining which particular employment position you would like to accept, you seek further advice to ensure that simultaneous Confidential Advice, 13-526 May 3, 2013 Page 5 service would not be prohibited as to that particular employment position. Absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not limit your ability to represent a governmental employer before the aforesaid bodies. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. 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