HomeMy WebLinkAbout15-556 Mauro
ADVICE OF COUNSEL
August 20, 2015
Melanie Mauro
254 West Madison Street
Easton, PA 18042-6231
15-556
Dear Ms. Mauro:
This responds to your letter dated July 23, 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 city council
member, whose father is employed by the city as the city engineer, with regard to voting
on an annual city budget that would include her father’s salary as an item within the city
public works department budget.
Facts:
You request an advisory from the Commission based upon submitted
facts, the material portion of which may be fairly summarized as follows.
You are a Member of the City Council of the City of Easton (“City”). You were
appointed to City Council as of October 18, 2014, and your term of office will end in
January 2016.
Your father has been employed by the City as the City Engineer since the 1980s,
and he is the only engineer at City Hall. Your father’s annual salary is an item within the
City Public Works Department budget under “Salaries – professional staff.” The City’s
annual operating budget includes the budgets for the City Public Works Department and
other City departments.
The 2016 City budget will be presented to City Council for a vote in early October
2015. The City’s total budget for 2016 would be approximately $35 million. Your
father’s salary for 2016 would be approximately $83,000.
You state that you have no influence over the salary or the formula used to
determine salary increases for any employee in the City Public Works Department. You
further state that you do not believe there is a process through which you could recuse
yourself from voting on just one salary within the entire City budget.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to vote on the 2016 City budget.
Mauro, 15-556
August 20, 2015
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 City 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
Mauro, 15-556
August 20, 2015
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.
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.
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 your inquiry, you are advised
as follows.
Your father is a member of your “immediate family” as that term is defined in the
Ethics Act. To the extent the 2016 City budget would include funding for your father’s
salary as the City Engineer as a separate line item, you would have a conflict of interest
under Section 1103(a) of the Ethics Act as to that particular line item. However, if your
father’s salary as the City Engineer would not be a separate line item on the 2016 City
budget, you would have a conflict of interest as to the 2016 City budget in its entirety.
Cf., Auslander, Advice 14-516.
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.
Conclusion:
Based upon the submitted facts that: (1) you are a Member of the
City Council of the City of Easton (“City”); (2) you were appointed to City Council as of
Mauro, 15-556
August 20, 2015
Page 4
October 18, 2014, and your term of office will end in January 2016; (3) your father has
been employed by the City as the City Engineer since the 1980s, and he is the only
engineer at City Hall; (4) your father’s annual salary is an item within the City Public
Works Department budget under “Salaries – professional staff”; (5) the City’s annual
operating budget includes the budgets for the City Public Works Department and other
City departments; (6) the 2016 City budget will be presented to City Council for a vote in
early October 2015; (7) the City’s total budget for 2016 would be approximately $35
million; (8) your father’s salary for 2016 would be approximately $83,000; (9) you have
no influence over the salary or the formula used to determine salary increases for any
employee in the City Public Works Department; and (10) you do not believe there is a
process through which you could recuse yourself from voting on just one salary within
the entire City budget, you are advised as follows.
As a City Council Member, 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.
Your father is a member of your “immediate family” as that term is defined in the Ethics
Act. To the extent the 2016 City budget would include funding for your father’s salary
as the City Engineer as a separate line item, you would have a conflict of interest under
Section 1103(a) of the Ethics Act as to that particular line item. However, if your father’s
salary as the City Engineer would not be a separate line item on the 2016 City budget,
you would have a conflict of interest as to the 2016 City budget in its entirety. 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