HomeMy WebLinkAbout16-538 Repak
ADVICE OF COUNSEL
June 22, 2016
Ronald N. Repak, Esquire
Andrews & Beard
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
16-538
Dear Mr. Repak:
This responds to your letters dated April 13, 2016, and April 18, 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 permit an individual who has been and may currently be
involved in a lawsuit against the Irvona Municipal Authority (“Authority”) to be appointed
to a non-compensated position as an Authority Board Member by Council for Irvona
Borough (“Borough”); and whether the Ethics Act would impose prohibitions or
restrictions upon four Borough Council Members with regard to voting to appoint the
individual to the Authority Board, where: (1) the mother of one of the Council Members
is employed with the Authority; (2) the son of one of the Council Members is an
Authority Board Member; (3) one of the Council Members is an Authority Board
Member; and (4) one of the Council Members is directly related to the potential
appointee.
Facts:
As Solicitor for the Borough, you have been authorized by Borough
Council to request an advisory from the Commission. You have further been authorized
by four Members of Borough Council, hereinafter referred to as “Council Member 1,”
“Council Member 2,” “Council Member 3,” and “Council Member 4,” to request an
advisory from the Commission on their behalf. You have submitted facts that may be
fairly summarized as follows.
The Borough is partners with Beccaria Township with regard to the organization
of the Authority, which disperses water to the Borough and Beccaria Township.
Members of the Authority Board do not receive any payment for their services. Borough
Council might appoint a particular individual (“the Individual”) to the Authority Board.
The Individual has been involved in a lawsuit against the Authority with regard to a
property issue. (It is noted that the submitted facts are unclear as to whether the
Individual’s lawsuit against the Authority is ongoing or has concluded.)
Repak, 16-538
June 22, 2016
Page 2
The mother of Council Member 1 is employed with the Authority, and she is not
related to the Individual. The son of Council Member 2 is a Member of the Authority
Board, and he is not related to the Individual. Council Member 3 is a Member of the
Authority Board. You state that Council Member 4 is “directly related” to the Individual.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit the Individual to be appointed to the
Authority Board; and
(2) Whether Council Member 1, Council Member 2, Council Member 3, or
Council Member 4 would have a conflict of interest with regard to voting to
appoint the Individual to the Authority Board.
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.
Council Member 1, Council Member 2, Council Member 3, and Council Member
4 are public officials 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
Repak, 16-538
June 22, 2016
Page 3
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.
"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.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first question, you are advised as follows.
Repak, 16-538
June 22, 2016
Page 4
Regardless of whether the Individual’s lawsuit against the Authority is ongoing or
has concluded, the Ethics Act would not prohibit the Individual from being appointed as
a Member of the Authority Board. If the Individual would be appointed as a Member of
the Authority Board, he would in that capacity be a public official subject to the
provisions of the Ethics Act, including but not limited to the restrictions as to conflicts of
interest.
With regard to your second question, you are advised as follows.
Council Member 1’s mother is a member of Council Member 1’s “immediate
family” as that term is defined in the Ethics Act. Council Member 2’s son is a member of
Council Member 2’s “immediate family” as that term is defined in the Ethics Act The
submitted facts do not indicate the familial relationship between Council Member 4 and
the Individual so as to establish whether the Individual is a member of Council Member
4’s “immediate family” as that term is defined in the Ethics Act.
As to Council Member 1, you are advised that per Commission precedent,
Council Member 1 would have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to voting to appoint the Individual to the Authority Board because the
Individual, in his capacity as an Authority Board Member, would exercise authority over
Council Member 1’s mother with respect to her employment with the Authority. See,
Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001
(involving reciprocity of power).
As noted above, in each instance of a conflict of interest, Council Member 1
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.
With regard to Council Member 2 and Council Member 3, you are advised that
there is no basis in the submitted facts to conclude that either Council Member 2 or
Council Member 3 would have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to voting to appoint the Individual to the Authority Board.
As to Council Member 4, you are advised that even if the Individual would be a
member of Council Member 4’s “immediate family” as that term is defined in the Ethics
Act, Council Member 4 would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to appoint the Individual to a non-compensated position
as a Member of the Authority Board because the element of a private pecuniary benefit
would be lacking.
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 Borough Code or the Municipality Authorities Act.
Conclusion:
The four Members of Council for Irvona Borough (“Borough”) on
whose behalf you have inquired, hereinafter referred to as “Council Member 1,” “Council
Member 2,” “Council Member 3,” and “Council Member 4,” are public officials 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 Borough is partners with
Beccaria Township with regard to the organization of the Irvona Municipal Authority
(“Authority”), which disperses water to the Borough and Beccaria Township; (2)
Members of the Authority Board do not receive any payment for their services; (3)
Borough Council might appoint a particular individual (“the Individual”) to the Authority
Repak, 16-538
June 22, 2016
Page 5
Board; (4) the Individual has been involved in a lawsuit against the Authority with regard
to a property issue; (5) the mother of Council Member 1 is employed with the Authority,
and she is not related to the Individual; (6) the son of Council Member 2 is a Member of
the Authority Board, and he is not related to the Individual; (7) Council Member 3 is a
Member of the Authority Board; and (8) Council Member 4 is directly related to the
Individual, you are advised as follows.
Regardless of whether the Individual’s lawsuit against the Authority is ongoing or
has concluded, the Ethics Act would not prohibit the Individual from being appointed as
a Member of the Authority Board. If the Individual would be appointed as a Member of
the Authority Board, he would in that capacity be a public official subject to the
provisions of the Ethics Act, including but not limited to the restrictions as to conflicts of
interest.
Council Member 1’s mother is a member of Council Member 1’s “immediate
family” as that term is defined in the Ethics Act. Council Member 2’s son is a member of
Council Member 2’s “immediate family” as that term is defined in the Ethics Act The
submitted facts do not indicate the familial relationship between Council Member 4 and
the Individual so as to establish whether the Individual is a member of Council Member
4’s “immediate family” as that term is defined in the Ethics Act.
Council Member 1 would have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to appoint the Individual to the Authority Board because
the Individual, in his capacity as an Authority Board Member, would exercise authority
over Council Member 1’s mother with respect to her employment with the Authority. In
each instance of a conflict of interest, Council Member 1 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.
There is no basis in the submitted facts to conclude that either Council Member 2
or Council Member 3 would have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to appoint the Individual to the Authority Board.
Even if the Individual would be a member of Council Member 4’s “immediate
family” as that term is defined in the Ethics Act, Council Member 4 would not have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to
appoint the Individual to a non-compensated position as a Member of the Authority
Board. 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.
Repak, 16-538
June 22, 2016
Page 6
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