HomeMy WebLinkAbout13-562 Smith
ADVICE OF COUNSEL
August 29, 2013
Nelie M. Smith
502 S. Chestnut Street
Derry, PA 15627
13-562
Dear Ms. Smith:
This responds to your letter dated July 31, 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 impose prohibitions or restrictions upon a borough
council member, whose son is employed with the borough’s public works department,
with regard to participating in matter(s) involving the borough’s public works department.
Facts:
You were recently appointed as a Member of Council for Derry Borough
(“Borough”). Your son is employed with the Borough Public Works Department.
Based upon the above submitted facts, you seek guidance as to whether you
would have a conflict of interest with regard to: (1) participating in matter(s) involving the
Borough Public Works Department; or (2) reporting problems within the Borough Public
Works Department to Borough Council.
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 Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
Smith, 13-562
August 29, 2013
Page 2
§ 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
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
Smith, 13-562
August 29, 2013
Page 3
"Immediate family."
A parent, spouse, child, brother
or sister.
"Business."
Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated."
Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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.
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, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Based upon Kistler,
the existence of a violation of Section 1103(a) would depend upon the circumstances in
a given case. Raphael, Opinion 13-003.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Smith, 13-562
August 29, 2013
Page 4
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
In applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Your son is a member of your “immediate family” as that term is defined in the
Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest and would violate Section 1103(a) of the Ethics Act by participating in your
official capacity as a Borough Council Member in matter(s) involving the Borough Public
Works Department to the extent that: (1) you would be consciously aware of a private
pecuniary benefit for you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated; (2) your action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither the de
minimis exclusion nor the class/subclass exclusion set forth within the Ethics Act’s
definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be
applicable.
As noted above, in each instance of a conflict of interest, you 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.
You are further advised that Section 1103(a) of the Ethics Act generally would
not prohibit you from reporting problems within the Borough Public Works Department
to Borough Council.
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 a Member of Council for Derry 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. Your son, who is employed with the Borough
Public Works Department, is a member of your “immediate family” as that term is
defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would
have a conflict of interest and would violate Section 1103(a) of the Ethics Act by
participating in your official capacity as a Borough Council Member in matter(s)
involving the Borough Public Works Department to the extent that: (1) you would be
consciously aware of a private pecuniary benefit for you, a member of your immediate
family, or a business with which you or a member of your immediate family is
associated; (2) your action(s) would constitute one or more specific steps to attain that
benefit; and (3) neither the “de minimis exclusion” nor the “class/subclass exclusion” set
forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest," 65
Pa.C.S. § 1102, would be applicable. In each instance of a conflict of interest, you
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(a) of the Ethics Act
Smith, 13-562
August 29, 2013
Page 5
generally would not prohibit you from reporting problems within the Borough Public
Works Department to Borough Council. 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