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HomeMy WebLinkAbout85-590 IsraelStephen Israel, Esquire 1109 Grant Building Pittsburgh, PA 15219 Mailing Address State Ethics Commission 308 Finance Building P. 0. Box 11 470 Harrisburg, Pa. 17108 -1470 October 18, 1985 ADVICE OF COUNSEL Re: Borough Employee, Mayor, Member of Labor Union Dear Mr. Israel: 85 -590- This responds to your letter of September 18, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a borough employee may retain his position as a labor union steward if he becomes borough mayor. Facts: You are the Solicitor for Lincoln Borough, Allegheny County, Pennsylvania and, as such, you have requested the advice of the State Ethics Commission. You indicate that one of the two borough road workers is currently planning on seeking the position of borough mayor. This road worker is a member of a union which represents the borough workers and is also the union steward. You have asked, whether there is any conflict of interest presented in this situation. Discussion: As a borough mayor, this individual would be a public official as that term is set forth in the State Ethics Act. 65 P.S. §402. As such, his conduct must conform to the requirements of the Act. Davis, 84 -012. Generally, the Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a ' member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Stephen Israel Esquire October 18, 1985 Page 2 Within this provision of law, a public official may not obtain for himself through his office or through confidential information obtained therein, any financial gain other than his compensation provided by law. In addition to the foregoing, the Ethics Commission may address other areas of possible conflict. 65 P.S. §403(d). The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, 80 -007; or where an individual serves in positions that are incompatible or conflicting, Nelson, 85 -009. Pursuant to Section 3(a) of the Act, we believe that a borough mayor who is also a member or representative of a labor union representing the borough road workers may not participate to any extent in any matter generally relating to the road workers, including the fixing of compensation, benefits or collective bargaining agreements. Such abstention from participation must be duly recorded in appropriate borough public records. This position has been affirmed in McAdoo Borough v. Pennsylvania Labor Relations Board, 79 Pa. Commw. 158, 469, A.2d 693. In that case, it was specifically held that a borough member who was a member of the union representing borough employees could not vote on collective bargaining agreements covering borough employees. We can see no reason why this concept is less applicable to a borough mayor and, thus, a mayor may not participate in matters relating to the borough road workers or relating to the labor union representing such workers. See Pennsylvania Department of State v. Mt. Joy Borough, 66 D &C 2 51, At 253 (1948). A more difficult question is presented by the question of whether the borough mayor may simultaneously serve as the labor union steward. This Commission has, on previous occasions, addressed the issues of public officials serving in inherently incompatible positions. See Alfano, 80 -007; Nelson, 85 -009. In determining whether there is a conflict of interest, the facts of the particular situation must be reviewed. As a borough mayor, there is no doubt that this person would be responsible for representing the borough and the citizens of the borough. This person, as a public official would be responsible, along with the council, for borough action and borough finances, 53•P.S. § §46003; 46028; 46029. As borough mayor, this person would have access to confidential information. As union steward, this person would be responsible for Stephen Israel , Esquire October 18, 1985 Page 3 representing the road workers. As such, this person would present to the borough, on behalf of such workers, grievances, salary demands and other positions regarding working conditions generally. The Borough Code clearly sets forth an intent not to have borough officials serve in positions that are incompatible with their borough offices. See e.g. 53 P.S. § §46021; 46022; 46104. Based upon the facts of this situation, it appears as though the positions of borough mayor and labor union steward are incompatible. Thus, if elected mayor, this person must not be the representative for the borough road workers. See Lutton, 80 -007; Koplovitz, 85 -510. The Commission has not issued any opinions indicating that a borough mayor may not otherwise serve as a road worker. There appears to be no case law in this area. However, your attention is directed to the Borough Code provisions regarding the holding of multiple offices, 53 P.S. 46104 and the case of Webber v. Midway Borough, 205 Pa. Super. 464, 211 A.2d 45, (1965). Conclusion: The position of borough mayor and labor union steward for the borough road workers are incompatible and present a conflict of interest under the State Ethics Act. A borough mayor may not participate to any extent in any matter relating to borough road workers when he also serves as a borough worker and where he is a member of the labor union representing such workers. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJCIsfb This letter is a public record and will be made available as such. Sinc- - y, 4 t, John J. Gene Counsel