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HomeMy WebLinkAbout87-565 DielMr. Edward Diel 207 Dolomite Drive Monroeville, PA 15146 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 14, 1987 ADVICE OF COUNSEL Re: Member Municipal Authority, Son Employed By Authority Dear Mr. Diel: 87 -565 This responds to your letter of May 5, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act presents any prohibitions upon your service as a member of a municipal authority when your son is employed by that authority. Facts: You advise that you were appointed to the Water Authority in Monroeville, Pennsylvania in May 1982. You are a compensated member of that authority. In the fall of 1983, a collective bargaining agreement was voted upon and passed. You voted in favor of that agreement. This agreement is presently being renegotiated and will be subject to vote in the near future. Your son, Martin, is an employee of the water authority and has been such since 1984. He is currently covered by the agreement of 1983 and will also be subject to any renegotiated agreement. You advise that your son is not a minor dependent and currently does not reside with you. You have requested the advice of the State Ethics Commission as to whether you may serve on the municipal authority when your son is employed by that entity. You have also requested the advice of the Commission as to what, if any, restrictions are placed upon your activity in relation to the new collective bargaining agreement. Discussion: As a member of a municipal water authority, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements thereof. See Dice, 85 -021. Generally, the Ethics Act provides as follows: Mr. Edward Diel May 14, 1987 Page 2 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). The Act further defines a member of one's immediate family as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Within the above provision of law, you would not be able to use your position, as a public official, in order to benefit yourself or your minor dependent children. In the instant situation, it is clear that your son is not a minor dependent and also is not residing in your household. Therefore, within the above provision of law, there would appear to be no restriction upon your participation in the collective bargaining agreement. In addition to the foregoing, however, the State Ethics Act also allows this Commission to address other areas of possible conflict. 65 P.S. §403(d). The provision of law, as noted above, would generally prevent a public official from participating in any matter wherein he is attempting to serve one or more interests that are adverse. See Alfano, 80 -007. Generally, the parameters of the types of activities encompassed by this particular provision of law, are determined through a review of the intent and scope of the State Ethics Act as set forth in the preamble thereof. Generally, the State Ethics Act was promulgated in order to ensure the public that the financial interest of their officials do not conflict with the public trust. 65 P.S. §401. Within this provision of law, which we note is not restricted by any definitional parameters, a public official or employee is to ensure that his personal interests do not conflict with the public trust. As a result, the Commission in light of the intent of the State Ethics Act, as enunciated in section 401 thereof, has on a number of occasions determined that it would be the better practice for a public offical not to participate in a matter that involves a member of their family even though such is not a member of their "immediate family" as defined in the law. See for example, O'Reilly, 83 -012, (Adult son) Cumberladge, No. 216 -R, (Adult daughter); Leete, 82 -005, (Sister). Thus, within these previously determined opinions of the Commission, it would be the better practice for you as a member of the municipal authority not to participate in certain aspects of the collective bargaining agreement. Mr. Edward Diel May 14, 1987 Page 3 In respect to the above, it is also important to note that certain clarifications may be in order. This Commission has in the past reviewed situations involving collective bargaining agreements and a public official's participation therein. The Commission has generally determined that a public official should not participate in the negotiation of the terms of the collective bargaining agreement if the agreement will affect a member of his family. The Commission, however, has also determined that as long as the individual has not so participated in the negotiation of this agreement, that he would not be prohibited from voting upon the final ratification of the agreement as long as such did not affect his family member any more than the other members of the class encompassed by the agreement. See Blaney, 84 -003 and Krier, 84 -002. Thus, it would be the better practice for you in the instant situation to forego participating to any extent in the negotiation process regarding the collective bargaining agreement. Your abstention in these matters should be appropriately noted and recorded in the records of the municipal authority. In the event that agreement thereafter does not affect your son to any greater extent than the other members of the class of employees affected by this agreement, then you may vote in the final adoption or ratification of this agreement. Finally, the Ethics Act would present no per se or absolute prohibitions upon your service as a member of the municipal authority, even though your son may be employed by that authority. You must, however, conform your conduct as a public official to the requirements of the State Ethics Act and in certain situations involving your son, your conduct may be restricted and abstention may be required. Conclusion: The State Ethics Act presents no absolute prohibitions upon your service as a member of a municipal authority, even though your son is employed by that authority. Your conduct as a public official, however, must conform to the requirements of the State Ethics Act. In the instant situation, it would be the better practice for you to abstain from participating in the actual negotiation of the collective bargaining agreement. You may, however, participate in the final ratification or adoption of that agreement by the authority if the agreement does not affect or otherwise impact upon your son to any greater extent that those other members of the class affected by the agreement. 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. Mr. Edward Di el May 14, 1987 Page 4 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 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. Sin John J Contino Act ' g General Counsel