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Home My WebLink About16-529 Melan ADVICE OF COUNSEL May 5, 2016 Peter Melan 500 Reeder Street Easton, PA 18042 16-529 Dear Mr. Melan: This responds to your undated letter postmarked March 23, 2016, received March 25, 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 an individual serving as a city council member with regard to making a recommendation to the city mayor that a member of the individual’s family be appointed to a city authority, board, or commission. Facts: You are a Member of the City Council of the City of Easton (“City”). You seek guidance as to whether the Ethics Act would permit you to make a recommendation to the City Mayor that a member of your family be appointed to a City authority, board, or commission. It is administratively noted that pursuant to the Home Rule Charter of the City of Easton, the City Mayor has the power to make certain appointments with the advice and consent of City Council. See, Section C-02.03 of the Home Rule Charter of the City of Easton. 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 Melan, 16-529 May 5, 2016 Page 2 (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 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. Melan, 16-529 May 5, 2016 Page 3 "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. 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. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The submitted facts are insufficient to enable a conclusive determination as to whether the elements of a conflict of interest would be established if you would make a recommendation to the City Mayor that a member of your family, hereinafter referred to as “the Individual,” be appointed to a City authority, board, or commission. The submitted facts do not indicate the familial relationship between you and the Individual, so as to establish whether the Individual is a member of “immediate family” as that term is defined in the Ethics Act. Additionally, the submitted facts do not indicate whether the appointed position would involve compensation that would not be de minimis. Therefore, you are generally advised that you would not transgress Section 1103(a) of the Ethics Act by using the authority of your public position as a City Council Member--such as by making a recommendation to the City Mayor or voting--to further the appointment of the Individual to a City authority, board or commission unless: (1) the Individual would be a member of your “immediate family” as that term is defined in the Ethics Act; and (2) any compensation that the Individual would receive for serving on the City authority, board or commission would not be de minimis. 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. Melan, 16-529 May 5, 2016 Page 4 Conclusion: As a Member of the City Council of the City of Easton (“City”), 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. The submitted facts are insufficient to enable a conclusive determination as to whether the elements of a conflict of interest would be established if you would make a recommendation to the City Mayor that a member of your family, hereinafter referred to as “the Individual,” be appointed to a City authority, board, or commission. The submitted facts do not indicate the familial relationship between you and the Individual, so as to establish whether the Individual is a member of “immediate family” as that term is defined in the Ethics Act. Additionally, the submitted facts do not indicate whether the appointed position would involve compensation that would not be de minimis. Therefore, you are generally advised that you would not transgress Section 1103(a) of the Ethics Act by using the authority of your public position as a City Council Member--such as by making a recommendation to the City Mayor or voting--to further the appointment of the Individual to a City authority, board or commission unless: (1) the Individual would be a member of your “immediate family” as that term is defined in the Ethics Act; and (2) any compensation that the Individual would receive for serving on the City authority, board or commission would not be de minimis. 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