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HomeMy WebLinkAbout15-525 Riley ADVICE OF COUNSEL March 26, 2015 Russell Riley, Chairman Shenango Township Board of Supervisors 1100 Shepherd Lane New Castle, PA 16101 15-525 Dear Mr. Riley: This responds to your letter dated February 18, 2015 (postmarked February 24, 2015, and received February 26, 2015), by which you requested an advisory from the Pennsylvania State Ethics Commission (“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 member and chairman of a township board of supervisors, whose son is an employee of the township public works department, with regard to voting on a collective bargaining agreement that would cover the employees of the township public works department. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are a Member and Chairman of the Board of Supervisors of Shenango Township (“Township”). The Township Board of Supervisors consists of three Members. Your son is employed with the Township Public Works Department (the “Department”). The employees of the Department are members of Teamster Local Union 261 (the “Union”). In 2014, negotiations were initiated for a collective bargaining agreement (the “Collective Bargaining Agreement”) that would cover Department employees beginning in 2015. A Union representative and individuals from the Department negotiated the terms of the Collective Bargaining Agreement with a Township Supervisor. The Union prepared the Collective Bargaining Agreement, and the Township reviewed the Collective Bargaining Agreement with the Township Solicitor. The Collective Bargaining Agreement includes a three percent annual increase in pay, an increase in pension contributions, and additional days off. Based upon the above submitted facts, you pose the following questions: Riley, 15-525 March 26, 2015 Page 2 (1) Whether you would have a conflict of interest with regard to voting on the Collective Bargaining Agreement; and (2) If you and another Township Supervisor would have conflicts of interest with regard to voting on the Collective Bargaining Agreement, whether you would be permitted to vote after announcing that you have a conflict of interest. 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. 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. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Member and Chairman of the Township Board of Supervisors, 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. Riley, 15-525 March 26, 2015 Page 3 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. "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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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. Thus, a public official’s participation in negotiations, meetings, discussions, deliberations, written and electronic communications, and/or vote(s) may satisfy the element of “use of authority of office.” 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. 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 Riley, 15-525 March 26, 2015 Page 4 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. Having established the above general principles, you are advised as follows. Your son is a member of your “immediate family” as that term is defined in the Ethics Act. You would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the Collective Bargaining Agreement unless the class/subclass exclusion would be applicable as to any impact upon your son. See, Davison, Opinion 08-006 at 5. (The submitted facts do not enable a conclusive determination in that regard.) Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act are strictly limited to voting and do not authorize an individual with a conflict to make a motion to put the matter in a posture for a vote. When two members on a three- member board would have conflicts of interest, only the non-conflicted member could make a motion. Since the non-conflicted member could not second his own motion and it would be otherwise impossible to obtain a second to the motion, a conflicted member, having previously abstained and disclosed his conflict, could then second the motion if he would so choose. A conflicted member could not discuss or advocate as to the motion. A conflicted member could only vote on the motion. Cf., Confidential Opinion, 04-003. Therefore, where you and a second Township Supervisor would have conflicts of interest with regard to voting on the Collective Bargaining Agreement, only the third, non-conflicted Township Supervisor could make a motion. If such a motion would not be made, there would be no opportunity for a motion to be seconded. If such a motion would be made, you, having previously abstained and disclosed the conflict, could then second the motion if you would so choose. You could not discuss or advocate as to the motion. You could only vote on the motion. Cf., Confidential Opinion, 04-003. It is parenthetically noted that with regard to the collective bargaining process, the Public Employee Relations Act provides as follows: § 1101.1801. Conflict of interest (a) No person who is a member of the same local, State, national or international organization as the employe Riley, 15-525 March 26, 2015 Page 5 organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. (b) Any person who violates subsection (a) of this section shall be immediately removed by the public employer from his role, if any, in the collective bargaining negotiations or in any matter in connection with such negotiations. 43 P.S. § 1101.1801. Since the Commission does not have the statutory jurisdiction to administer or interpret the Public Employee Relations Act, it is recommended that you obtain legal advice as to any potential impact of that Act. 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 Second Class Township Code or the Public Employee Relations Act. Conclusion: As a Member and Chairman of the Board of Supervisors of Shenango Township (“Township”), 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) the Township Board of Supervisors consists of three Members; (2) your son is employed with the Township Public Works Department (the “Department”); (3) the employees of the Department are members of Teamster Local Union 261 (the “Union”); (4) in 2014, negotiations were initiated for a collective bargaining agreement (the “Collective Bargaining Agreement”) that would cover Department employees beginning in 2015; (5) a Union representative and individuals from the Department negotiated the terms of the Collective Bargaining Agreement with a Township Supervisor; (6) the Union prepared the Collective Bargaining Agreement, and the Township reviewed the Collective Bargaining Agreement with the Township Solicitor; and (7) the Collective Bargaining Agreement includes a three percent annual increase in pay, an increase in pension contributions, and additional days off, you are advised as follows. Your son is a member of your “immediate family” as that term is defined in the Ethics Act. You would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the Collective Bargaining Agreement unless the class/subclass exclusion would be applicable as to any impact upon your son. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. Where you and a second Township Supervisor would have conflicts of interest with regard to voting on the Collective Bargaining Agreement, only the third, non- conflicted Township Supervisor could make a motion. If such a motion would not be made, there would be no opportunity for a motion to be seconded. If such a motion would be made, you, having previously abstained and disclosed the conflict, could then second the motion if you would so choose. You could not discuss or advocate as to the motion. You could only vote on the motion. 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 Riley, 15-525 March 26, 2015 Page 6 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