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HomeMy WebLinkAbout14-515 Musewicz ADVICE OF COUNSEL April 7, 2014 John F. Musewicz 2 Mruck Street Throop, PA 18512 14-515 Dear Mr. Musewicz: This responds to your letter dated February 11, 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 a borough council member, who in a private capacity is the president of a booster club, with regard to voting on the award of a contract to upgrade borough land which the booster club would be permitted to use for community-based youth softball programs. 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 Throop Borough (“Borough”). In a private capacity, you are President of the Throop Booster Club (“the Booster Club”), which is a non-profit organization made up of volunteers who promote youth sports in the community. In the early 1970s, the Borough deeded a tract of land (“the Land”) to the Booster Club to be used for recreation. The Booster Club has used the Land for community- based youth baseball and softball programs since the Land was transferred to the Booster Club. The Borough recently put together plans (“the Plans”) to upgrade the Land for the continued use of the programs that serve the Borough youth. Under the Plans, the Booster Club would deed the Land back to the Borough. The Plans would then move forward to a final stage that could involve a vote by Borough Council to award a contract to upgrade the Land. The Booster Club would be permitted to use the Land for the community-based youth softball programs. Based upon the above submitted facts, you seek guidance as to whether you would be permitted to participate if Borough Council would vote on the award of a contract to upgrade the Land. 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 Musewicz, 14-515 April 7, 2014 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. As a Member of Borough Council, 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 Musewicz, 14-515 April 7, 2014 Page 3 "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. "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. Musewicz, 14-515 April 7, 2014 Page 4 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, 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 considering your specific question, the submitted facts do not indicate whether the Booster Club would be financially impacted if the Borough would upgrade the Land or whether entity(ies) in addition to the Booster Club would be permitted to use the upgraded Land. Therefore, this Advice must necessarily be limited to providing general guidance as to Section 1103(a) of the Ethics Act. The Booster Club is a business with which you are associated in your capacity as an officer (President). See, Musewicz, Advice 12-567. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council that would financially impact you or the Booster Club. In particular, you would have a conflict of interest and would violate Section 1103(a) of the Ethics Act in your official capacity as a Borough Council Member by voting on the award of a contract to upgrade the Land if: (1) you would be consciously aware of a private pecuniary benefit for the Booster Club; (2) your official action would constitute one or more specific steps to attain that benefit; (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; and (4) your voting would not fall within either of the statutory exceptions of Section 1103(j) of the Ethics Act. 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. 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 Throop 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. Based upon the submitted facts that: (1) in a private capacity, you are President of the Throop Booster Club (“the Booster Club”), which is a non-profit organization made up of volunteers who promote youth sports in Musewicz, 14-515 April 7, 2014 Page 5 the community; (2) in the early 1970s, the Borough deeded a tract of land (“the Land”) to the Booster Club to be used for recreation; (3) the Booster Club has used the Land for community-based youth baseball and softball programs since the Land was transferred to the Booster Club; (4) the Borough recently put together plans (“the Plans”) to upgrade the Land for the continued use of the programs that serve the Borough youth; (5) under the Plans, the Booster Club would deed the Land back to the Borough; (6) the Plans would then move forward to a final stage that could involve a vote by Borough Council to award a contract to upgrade the Land; and (7) the Booster Club would be permitted to use the Land for the community-based youth softball programs, you are advised as follows. The Booster Club is a business with which you are associated in your capacity as an officer (President). Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council that would financially impact you or the Booster Club. In particular, you would have a conflict of interest and would violate Section 1103(a) of the Ethics Act in your official capacity as a Borough Council Member by voting on the award of a contract to upgrade the Land if: (1) you would be consciously aware of a private pecuniary benefit for the Booster Club; (2) your official action would constitute one or more specific steps to attain that benefit; (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; and (4) your voting would not fall within either of the statutory exceptions of Section 1103(j) of the Ethics Act. 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