HomeMy WebLinkAbout13-573 Bowser
ADVICE OF COUNSEL
November 4, 2013
Robert P. Bowser
Worthington Borough Councilman
143 Main Street
Worthington, PA 16262
13-573
Dear Mr. Bowser:
This responds to your letter dated September 11, 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 with regard to the hiring of his grandson for the position of part-time
borough maintenance worker.
Facts:
As a Member of Council for Worthington Borough (“Borough”), you
request an advisory from the Pennsylvania State Ethics Commission based upon the
following submitted facts.
On August 5, 2013, Borough Council received a request from the Borough Mayor
to consider hiring your grandson as a part-time Borough maintenance worker. You
state that you abstained from voting on the Mayor’s request.
You ask whether you would have a conflict of interest with regard to the hiring of
your grandson for the position of part-time Borough maintenance worker. You state that
you would have no financial gain from the hiring of your grandson for such position and
that you would abstain from voting on any and all compensation or matters concerning
your grandson’s work which may come before 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.
Bowser, 13-573
November 4, 2013
Page 2
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:
§ 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
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.
Bowser, 13-573
November 4, 2013
Page 3
"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.
"Immediate family."
A parent, spouse, child, brother
or sister.
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 instant matter, you are
advised as follows.
Subject to the statutory exceptions to the definition of “conflict” or “conflict of
interest,” pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before Borough Council that would financially impact you, a member
of your immediate family, or a business with which you or a member of your immediate
family is associated. Your grandson is not a member of your “immediate family” as that
term is defined by the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161
(Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 (1998) (Holding that
a relative not encompassed by the family relationships listed in the Ethics Act’s
definition of the term “immediate family”—in that case, a son-in-law—would not be
considered a member of immediate family).
Since your grandson is not a member of your immediate family, you would not
have a conflict of interest under Section 1103(a) of the Ethics Act with regard to the
hiring of your grandson for the position of part-time Borough maintenance worker.
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 Worthington 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. Subject to the statutory exceptions to the
definition of “conflict” or “conflict of interest,” pursuant to Section 1103(a) of the Ethics
Act, you would have a conflict of interest in matters before Borough Council that would
financially impact you, a member of your immediate family, or a business with which you
or a member of your immediate family is associated. Your grandson is not a member of
your “immediate family” as that term is defined by the Ethics Act. Since your grandson
Bowser, 13-573
November 4, 2013
Page 4
is not a member of your immediate family, you would not have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to the hiring of your grandson for
the position of part-time Borough maintenance worker. 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