HomeMy WebLinkAbout16-528 Louder
ADVICE OF COUNSEL
May 5, 2016
Donna M. Louder
2145 Johnston Avenue
Bethlehem, PA 18015
16-528
Dear Ms. Louder:
This responds to your letter dated March 8, 2016 (postmarked March 10, 2016,
and received March 14, 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 township
council member, whose husband is employed as a patrolman with the township police
department, with regard to: (1) voting on obtaining new equipment for the township
police department; (2) participating in negotiations or votes on labor contracts pertaining
to the township’s non-uniform employees; or (3) participating in negotiations or votes on
labor contracts pertaining to the township police department.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are a newly-elected Member of Council for Lower Saucon Township
(“Township”), located in Northampton County, Pennsylvania. The Township is
governed by a five-Member Council (“Township Council”).
Your husband is employed as a patrolman with the Township Police Department
(“Police Department”).
Based upon the above submitted facts, the following questions are presented by
your advisory request:
(1) Whether you would be permitted to vote on obtaining new equipment for
the Police Department;
(2) Whether you would be permitted to participate in negotiations or votes on
labor contracts pertaining to the non-uniform Township employees;
(3) Whether you would be permitted to participate in negotiations or votes on
labor contracts pertaining to employees of the Police Department; and
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May 5, 2016
Page 2
(4) If you would initially abstain from voting on a motion on a particular matter
due to a conflict of interest, whether you would be permitted to vote to
break a 2-2 tie vote of the other four Township Council Members on the
motion.
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 Township 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
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May 5, 2016
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"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.
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
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.
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
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May 5, 2016
Page 4
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 husband is a member of your “immediate family” as that term is defined in
the Ethics Act. Subject to the aforesaid statutory exclusions to the definition of “conflict”
or “conflict of interest” as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in
matters before Township Council that would financially impact you, a member of your
immediate family such as your husband, or a business with which you or a member of
your immediate family is associated.
You would not have a conflict of interest under Section 1103(a) of the Ethics Act
in voting on obtaining new equipment for the Police Department or participating in
negotiations or votes on labor contracts pertaining to the non-uniform Township
employees unless: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family such as your husband, or a business with
which you or a member of your immediate family is associated; (2) your action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Cf. Kistler, supra.
You are further advised that you would not have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to participating in negotiations or votes on
labor contracts pertaining to employees of the Police Department subject to the
condition that the class/subclass exclusion would be applicable as to any impact upon
your husband. 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. Because Township Council is comprised of five Members, the exception in
Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest
would not permit you to vote to break a 2-2 tie vote of the other four Township Council
Members where you would have a conflict of interest because such exception is
available exclusively to members of three member governing bodies who first abstain
and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See,
Pavlovic, Opinion 02-005.
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
organization with which the public employer is bargaining or
who has an interest in the outcome of such bargaining which
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May 5, 2016
Page 5
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.
Conclusion:
Based upon the submitted facts that: (1) you are a newly-elected
Member of Council for Lower Saucon Township (“Township”), located in Northampton
County, Pennsylvania; (2) the Township is governed by a five-Member Council
(“Township Council”); and (3) your husband is employed as a patrolman with the
Township Police Department (“Police Department”), you are advised as follows.
As a Township 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 husband is a member of your “immediate family” as that term is defined in the
Ethics Act. Subject to the statutory exclusions to the definition of “conflict” or “conflict of
interest” as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before
Township Council that would financially impact you, a member of your immediate family
such as your husband, or a business with which you or a member of your immediate
family is associated.
You would not have a conflict of interest under Section 1103(a) of the Ethics Act
in voting on obtaining new equipment for the Police Department or participating in
negotiations or votes on labor contracts pertaining to the non-uniform Township
employees unless: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family such as your husband, or a business with
which you or a member of your immediate family is associated; (2) your action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable. You would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to participating in
negotiations or votes on labor contracts pertaining to employees of the Police
Department subject to the condition that the class/subclass exclusion would be
applicable as to any impact upon your husband.
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. Because Township Council is comprised of five Members, the exception in
Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest
would not permit you to vote to break a 2-2 tie vote of the other four Township Council
Members where you would have a conflict of interest because such exception is
available exclusively to members of three member governing bodies who first abstain
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May 5, 2016
Page 6
and disclose their conflicts as required by Section 1103(j) of the Ethics Act. 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