HomeMy WebLinkAbout13-549 Allwein
ADVICE OF COUNSEL
July 9, 2013
Teresa G. Allwein
18 W. Richland Avenue
Myerstown, PA 17067-1529
13-549
Dear Ms. Allwein:
This responds to your letter dated May 11, 2013 (postmarked May 15, 2013, and
received May 16, 2013), 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 require a borough council member to be off borough
council for one year prior to accepting a position as the 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 Myerstown Borough (“Borough”). The Borough
currently does not have a Borough Manager, and you are interested in applying for
employment as the Borough Manager.
The narrow question that you have posed is whether the Ethics Act would require
you to be off Borough Council for one year prior to accepting a position as the Borough
Manager.
It is administratively noted that the Borough Code provides, in part: “[N]o mayor
or member of council may serve as borough manager ….” 53 P.S. § 46104(c).
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 Borough Council, you are a public official subject to the
provisions of the Ethics Act.
Allwein, 13-549
July 9, 2013
Page 2
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
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
Allwein, 13-549
July 9, 2013
Page 3
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.
Section 1103(g) of the Ethics Act is a one-year “revolving door” provision, which
provides:
§ 1103. Restricted activities
(g) Former official or employee.--
No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g).
In applying the above provisions of the Ethics Act to the particular question you
have posed, you are advised as follows.
Although the Borough Code, on its face, prohibits simultaneous service as a
borough council member and borough manager, 53 P.S. § 46104(c), Section 1103(a) of
the Ethics Act would not require you to resign from your position as a Borough Council
Member before you could apply for the position of Borough Manager or to wait one year
following your resignation from Borough Council before being appointed as the Borough
Manager. However, 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 interest in applying 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.
Allwein, 13-549
July 9, 2013
Page 4
You are advised that 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 applying for or being appointed to the position of Borough Manager.
Cf., Binder Heath/Arnold, Advice 06-568; Sipper, Order 1487.
You are further advised that if you would resign from Borough Council before
applying for the Borough Manager position, Section 1103(g) of the Ethics Act would not
prohibit you from applying for or being appointed to the position of Borough Manager
during the first year following such resignation. The Commission has determined that
Section 1103(g) of the Ethics Act does not prohibit the rehiring of the former public
official/public employee provided that a true public employment relationship exists. See,
McGlathery, Opinion 00-004; Long, Opinion 97-010; Confidential Opinion, 93-005.
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.
Conclusion:
As a Member of Council for Myerstown Borough (“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. Although the Borough Code, on its face,
prohibits simultaneous service as a borough council member and borough manager, 53
P.S. § 46104(c), Section 1103(a) of the Ethics Act would not require you to resign from
your position as a Borough Council Member before you could apply for the position of
Borough Manager or to wait one year following your resignation from Borough Council
before being appointed as the Borough Manager. However, 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 interest in applying
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 applying for or being appointed to the position of
Borough Manager. If you would resign from Borough Council before applying for the
Borough Manager position, Section 1103(g) of the Ethics Act would not prohibit you
from applying for or being appointed to the position of Borough Manager during the first
year following such resignation. 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
.
Allwein, 13-549
July 9, 2013
Page 5
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