HomeMy WebLinkAbout16-566 WidoSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO, BOX 11470
HARRISBURG, PA 1 71 08 -1 4703
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
December 8, 2016
To the Requester:
Mr. James Wido
Dear Mr. Wido:
16 -566
This responds to your letter dated October 13, 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
Ma�S. § 1101 et she , would impose prohibitions or restrictions upon an individual( with
regard to performing the duties of his public position as a borough council member if he
would apply for or obtain employment as a part -time laborer with the borough street
maintenance department.
Facts: You request an advisory from the Commission based upon the following
su admitted facts.
You are a Member of Council for the Borough of Shickshinny ( "Borough "). You
state that the Borough has a population of less than 900. You further state that you
pIan to apply for employment as a part-time laborer with the Borough Street
Maintenance Department.
Based upon the above submitted facts, you ask whether any conflict of interest
would be created if you would apply for or obtain employment as a part-time laborer
with the Borough Street Maintenance Department.
It is administratively noted that pursuant to Section 1104 of the Borough Code, 8
Pa.C.S. § 1104, an elected borough official of a borough with a population of less than
3,000 may serve as an employee of that borough.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) of
the Ethics 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.
FAX: (717) 787-0306 a Web Site: www.ethics.state.pa.us 0 e -mail: ethics(�?state.pa.us
Wido, 16 -566
Uec�ember 8, 2016
Page 2
As a Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Sections 1103(a) and 11030) 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.
0) 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
Edherein. 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), 0).
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.
Wido, 16 -566
member 8, 2016
Page 3
"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. § 1 102, a public official/public employee is
prohibited from using the authority of public office /employment or confidential
information received byy holding such a public position for the private pecuniary benefit
of the public officiallpublic 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 11030) 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.
Section 1103(a) of the Ethics Act would prohibit you from using the authority of
your public position as a Borough Council Member or confidential information received
by being a Borough Council Member to advance an opportunity of employment with the
Borough. In your capacity as a Borough Council Member, you generally would have a
conflict of interest in matters pertaining to the hiring of a part -time laborer for the
Borough Street Maintenance Department given your interest in applying for said
position. Such matters would include but would not be limited to determinina the
necessary qualifications for the position of part -time laborer with the Borough Street
Maintenance Department, reviewing applications, or screening or interviewing
applicants. You specifically would have a conflict of interest under Section 1103 (a) of
the Ethics Act with regard to participating in or voting in favor of the hiring of yourself for
the position of part -time laborer with the Borough Street Maintenance Department.
If you would be hired as a part -time laborer with the Borough Street Maintenance
Department, you generally would have a conflict of interest in matter(s) before Borough
Council pertaining to your Borough employment or to individual(s) who would exercise
authority over you with respect to your Borough employment.
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 11030) of the Ethics Act would be applicable. Additionally, the
disclosure requirements of Section 11030) 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. Specifically not addressed herein is the applicability of
the Borough Code.
Wido, 16 -566
December 8, 2016
Page 4
Conclusion: Based upon the submitted facts that: (1) you are a Member of
Council or a Borough of Shickshinny (`Borough "); (2) the Borough has a population of
less than 900; and (3) you plan to apply for employment as a part-time laborer with the
Borough Street Maintenance Department, you are advised as follows.
As a Borough 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 seg-
Section 1103(x) of the Ethics Act would prohibit you from using the authority, of your
public position as a Borough Council Member or confidential information received by
being a Borough Council Member to advance an opportunity of employment with the
Borough. In your capacity as a Borough Council Member, you generally would have a
conflict of interest in matters pertaining to the hiring of a part -time laborer for the
Borough Street Maintenance Department given your interest in applying for said
position. Such matters would include but would not be limited to determinin the
necessary qualifications for the position of part -time laborer with the Borough Street
Maintenance Department, reviewing applications, or screening or interviewing
applicants. You specifically would have a conflict of interest under Section 1103(a of
the Ethics Act with regard to participating in or voting in favor of the hiring of yourself for
the position of part -time laborer with the Borough Street Maintenance Deppartment. If
you would be hired as a part -time laborer with the Borough Street IVlaintenance
Department, you generally would have a conflict of interest in matter(s) before Borough
Council pertaining to your Borough employment or to individual(s) who would exercise
authority over you with respect to your Borough employment. 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 11030) of the Ethics Act
would be applicable. Additionally, the disclosure requirements of Section 11030) 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 writingg and must be act�ual)L,
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.
;Sinc ely,
Y � i
Robin M. HHittVVVie/
Chief Counsel