HomeMy WebLinkAbout14-505 Barsottini
ADVICE OF COUNSEL
February 19, 2014
Jacob M. Barsottini
th
624 4 Street
Patterson Heights
Beaver Falls, PA 15010
14-505
Dear Mr. Barsottini:
This responds to your letter dated January 7, 2014, 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 an individual with
regard to performing the duties of his position as a newly elected borough auditor as to
the year 2013, where the individual served as a borough council member in 2013.
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 are a newly elected Auditor for the Borough of Patterson Heights
(“Borough”), for a term beginning on January 6, 2014. (See, 53 P.S. § 45806(b)). You
served on Borough Council in 2013. You state that as a Borough Council Member, you
did not have any authority to pay bills or sign checks but you served as Chairman of the
Budget and Finance Committee. You further state that at the Borough reorganization
meeting held on January 6, 2014, four Borough Council Members challenged your right
to perform the duties of the position of Borough Auditor since you held a seat on
Borough Council in the year to be audited.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to performing
the duties of your position as a Borough Auditor as to the year 2013.
It is administratively noted that Section 46041 of the Borough Code provides, in
pertinent part, as follows:
§ 46041. Auditors to meet yearly, and audit accounts
(b) The auditors shall audit, adjust, and settle the accounts
of the tax collectors, the magisterial district judge and all
officers of the borough, and may also audit, adjust and settle
Barsottini, 14-505
February 19, 2014
Page 2
the accounts of any person, corporation, association,
organization, committee or commission receiving or
expending borough funds….
53 P.S. § 46041(b).
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 Auditor, 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
Barsottini, 14-505
February 19, 2014
Page 3
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.
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.
Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest as a Borough Auditor with regard to participating in matter(s) pertaining to the
accounts of Borough Council for the year 2013, including but not limited to the auditing,
adjusting, or settling of such accounts, as a result of having served as a Borough
Council Member in 2013. Cf., Morgan, Advice 98-505; Fisher, Advice 84-506. Absent a
private pecuniary benefit contrary to Section 1103(a) of the Ethics Act, you would not
have a conflict of interest with regard performing other duty(ies) of the position of
Borough Auditor.
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.
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.
Barsottini, 14-505
February 19, 2014
Page 4
Conclusion:
Based upon the submitted facts that: (1) you are a newly elected
Auditor for the Borough of Patterson Heights (“Borough”), for a term beginning on
January 6, 2014; (2) you served on Borough Council in 2013; (3) as a Borough Council
Member, you did not have any authority to pay bills or sign checks but you served as
Chairman of the Budget and Finance Committee; and (4) at the Borough reorganization
meeting held on January 6, 2014, four Borough Council Members challenged your right
to perform the duties of the position of Borough Auditor since you held a seat on
Borough Council in the year to be audited, you are advised as follows.
As a Borough Auditor, 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.
Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as a
Borough Auditor with regard to participating in matter(s) pertaining to the accounts of
Borough Council for the year 2013, including but not limited to the auditing, adjusting, or
settling of such accounts, as a result of having served as a Borough Council Member in
2013. Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act,
you would not have a conflict of interest with regard performing other duty(ies) of the
position of Borough Auditor. 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. 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