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HomeMy WebLinkAbout14-512 Wolbert ADVICE OF COUNSEL March 27, 2014 Sonia C. Wolbert 277 Prospect Street East Stroudsburg, PA 18301 14-512 Dear Ms. Wolbert: This responds to your letter dated February 3, 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 who serves as a borough council member with regard to performing the duties of her public position, where the individual’s husband was recently elected as a Constable in the borough. 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 Member of Council for the Borough of East Stroudsburg (“Borough”), located in Monroe County, Pennsylvania. From time to time, the Borough utilizes the services of Constables to serve warrants and paperwork. State law sets the fees to be paid by the Borough for utilizing the services of Constables. You state that as a Borough Council Member, you have little to no contact with the matters handled by Constables. You further state that you have not had any reason to utilize a Constable on behalf of the Borough and that you do not foresee any reason to do so in the near future. Your husband was recently elected as a Constable in the Borough. Your husband would receive payment from the Borough if it would utilize his services as a Constable. Based upon the above submitted facts, you ask for clarification as to any duties or obligations that you may have as a Borough Council Member with regard to your husband’s recent election as a Constable. In particular, you ask whether a letter to the Borough indicating that your husband has been elected as a Constable in the Borough would be sufficient to satisfy your ethical obligations to the Borough for disclosure. Wolbert, 14-512 March 27, 2014 Page 2 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: § 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 Wolbert, 14-512 March 27, 2014 Page 3 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. "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. It is noted that the above statutory definition of the term “conflict” or “conflict of interest” contains, in pertinent part, an exclusion referred to herein as the “de minimis exclusion.” 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. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). An economic impact may aggregate over time, rather than be limited to a particular increment of time such as a month or year. Confidential Opinion, 05-001. For multiple transactions, the aggregate financial benefit received from such transactions should be considered in order to determine whether the de minimis exclusion could have applicability. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Your husband is a member of your “immediate family” as that term is defined in the Ethics Act. Unless the de minimis exclusion would be applicable, you would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough Wolbert, 14-512 March 27, 2014 Page 4 Council pertaining to the Borough’s utilization of your husband’s services as a Constable, and you would also be prohibited from using the authority of your public position, or confidential information accessed or received as a result of being a Borough Council Member, to effectuate a private pecuniary benefit to your husband through a detriment to a competitor for work from the Borough. Pepper, Opinion 87-008. 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 each instance of a voting conflict. You are advised that submitting one letter to the Borough indicating that your husband has been elected as a Constable in the Borough would not be sufficient to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act for multiple subsequent voting conflicts. Rather, you would be required to satisfy the disclosure requirements of Section 1103(j) each time a voting conflict would arise, such that prior to the vote being taken, you would be required to publicly announce and disclose the nature of your 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. 65 Pa.C.S. § 1103(j). It would be permissible for you to prepare a disclosure memorandum in advance to copy, date, and submit to be kept with the meeting minutes each time a voting conflict would arise involving your husband’s services as Constable. 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 the Borough of East Stroudsburg (“Borough”), located in Monroe County, Pennsylvania, 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. Based upon the submitted facts that: (1) from time to time, the Borough utilizes the services of Constables to serve warrants and paperwork; (2) state law sets the fees to be paid by the Borough for utilizing the services of Constables; (3) as a Borough Council Member, you have little to no contact with the matters handled by Constables; (4) you have not had any reason to utilize a Constable on behalf of the Borough, and you do not foresee any reason to do so in the near future; (5) your husband was recently elected as a Constable in the Borough; and (6) your husband would receive payment from the Borough if it would utilize his services as a Constable, you are advised as follows. Your husband is a member of your “immediate family” as that term is defined in the Ethics Act. Unless the de minimis exclusion set forth in the Ethics Act’s definition of the term “conflict or conflict of interest,” 65 Pa.C.S. § 1102, would be applicable, you would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough Council pertaining to the Borough’s utilization of your husband’s services as a Constable, and you would also be prohibited from using the authority of your public position, or confidential information accessed or received as a result of being a Borough Council Member, to effectuate a private pecuniary benefit to your husband through a detriment to a competitor for work from the Borough. 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 as set forth above would have to be satisfied in each instance of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Wolbert, 14-512 March 27, 2014 Page 5 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