HomeMy WebLinkAbout16-518 Joy
ADVICE OF COUNSEL
March 25, 2016
The Honorable Chuck Joy
Mayor of the Borough of Port Carbon
115 Jackson Street
Port Carbon, PA 17965
16-518
Dear Mayor Joy:
This responds to your letter dated February 3, 2016, 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 borough mayor
with regard to: (1) receiving compensation for assisting with snow removal in the
borough; or (2) receiving compensation on a per diem basis for performing other work
for the borough.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are Mayor of the Borough of Port Carbon (“Borough”). You are paid $100.00
(gross) per month for serving as Borough Mayor. During the recent snow storm, you
assisted with snow removal in the Borough, which included driving Borough plow trucks.
You seek guidance as to whether the Ethics Act would permit you to be paid an
hourly rate for the hours that you worked assisting with snow removal in the Borough.
You further ask whether the Ethics Act would permit you to receive compensation on a
per diem basis for performing other work for the Borough.
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
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March 25, 2016
Page 2
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 Borough Mayor, 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
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
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March 25, 2016
Page 3
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.
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.
One of the exclusions to the statutory definition of "conflict" or "conflict of
interest," referred to herein as 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 up to approximately $1,200 to be de minimis. 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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f)Contract.--
No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
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March 25, 2016
Page 4
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term “contract” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
“open and public process” be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also provides that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
It is administratively noted that Section 1404 of the Borough Code provides:
“Elected and appointed borough officials and borough employees are restricted from an
interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11
(relating to ethics standards and financial disclosure).” 8 Pa.C.S. § 1404.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
An agreement or arrangement whereby you would perform snow removal
services for the Borough or provide other services to the Borough would constitute a
“contract” as that term is defined in the Ethics Act.
Sections 1103(a) and 1103(f) of the Ethics Act would not prohibit you from
receiving compensation for the hours that you worked assisting with snow removal in
the Borough or receiving compensation on a per diem basis for providing other services
to the Borough if: (1) you would not have used the authority of your position as Borough
Mayor to obtain such work/pay or the amount of compensation you would receive for
performing such work would be de minimis; and (2) the restrictions and requirements of
Section 1103(f) of the Ethics Act would have been observed whenever applicable.
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March 25, 2016
Page 5
(See, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), regarding
the requirements for an “open and public process.”)
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
Based upon the submitted facts that: (1) you are Mayor of the
Borough of Port Carbon (“Borough”); (2) you are paid $100.00 (gross) per month for
serving as Borough Mayor; and (3) during the recent snow storm, you assisted with
snow removal in the Borough, which included driving Borough plow trucks, you are
advised as follows.
As Borough Mayor, 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. An
agreement or arrangement whereby you would perform snow removal services for the
Borough or provide other services to the Borough would constitute a “contract” as that
term is defined in the Ethics Act. Sections 1103(a) and 1103(f) of the Ethics Act would
not prohibit you from receiving compensation for the hours that you worked assisting
with snow removal in the Borough or receiving compensation on a per diem basis for
providing other services to the Borough if: (1) you would not have used the authority of
your position as Borough Mayor to obtain such work/pay or the amount of compensation
you would receive for performing such work would be de minimis; and (2) the
restrictions and requirements of Section 1103(f) of the Ethics Act would have been
observed whenever applicable. 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