HomeMy WebLinkAbout18-519 LoperfitoPHONE: 717 - 783 -1610
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ADVICE OF COUNSEL
March 20, 2018
To the Requester:
Mr. tarry D. Loperfito, Esquire
Geary and Loperfito, LLC
Dear Mr. Loperfito:
FACSIMILE: 717- 787 -0806
WEBS[TE: www.ethics.pa.gov
18 -519
This responds to your letter dated February 1, 2018, 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�.S. § 1101 et seg., would impose prohibitions or restrictions upon a borough
council member with regard to participating In discussions or votes of borough council
pertaining to appropriations for the borough police department, labor grievances
involving borough police officers, and other matters related to the borough police
department, where: (1) the borough council member is a retired borough police officer
and a member of the Pennsylvania Fraternal Order of Police, which is the bargaining
agent for the borough police officers; and (2) the borough council member's son-in-law
is employed as a borough police officer.
Facts: As Solicitor for the Borough of Vandergrift ( "Borough "), you have been
auTHorized by Casimer H. Maszgay ('Mr. Maszgay'), who is a Borough Council
Member, to request an advisory from the Commission on his behalf. You have
submitted facts that may be fairly summarized as follows.
On April 21, 2016, Mr. Maszgay retired from his employment as a full -time police
officer with the Borough. Following his retirement from Borough employment, Mr.
Maszgay has remained a member of the Pennsylvania Fraternal Order of Police
( "Fraternal Order of Police "), which is the bargaining agent for the regular police officers
of the Borough. The Fraternal Order of Police provides legal representation, advice,
and counsel to the regular police officers of the Borough for grievances and any other
labor matters. Mr. Mazsgay s son-in -law is employed as a Borough police officer.
On January 2, 2018, Mr. Maszgay took office as a Borough Council Member.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon Mr. Maszgay with regard to participating in
discussions or votes of Borough Council pertaining to appropriations for the Borough
Police Department, labor grievances involving Borough police officers, and other
matters related to the Borough Police Department.
Loperfito, 18-
March 20, 205$9
Page 2
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. y§§ 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 Borough Council Member, Mr. Maszgay is 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.
(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), 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 employyee 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
Lo erfito, 18 -519
March , 2018
Page 3
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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
point stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated. " Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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 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.
Having established the above general principles, you are advised as follows.
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, Mr. Maszgay would have a conflict of interest in
matters before Borough Council that would financially impact him, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated.
Mr. Maszgay's son -in -law is not a member of his "immediate family" as that term
is defined by the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa.
Looperfito, 18 -519
arTVT -c M, 2018
Page 4
Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 (1998) (Holding that a
relative not encompassed y t e famil relationships listed in the Ethics Act's definition
of the term "immediate family " —in thar case, a son-in-law—would not be considered a
member of immediate family).
Under the submitted facts, the Fraternal Order of Police is not a business with
which Mr. Maszgay is associated because he is not a director, officer, owner, employee,
or holder of a financial interest in the Fraternal Order of Police. Cf., Rubenstein, Advice
09 -552; Hartman, Advice 09 -549.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Mr. Maszgay, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Mr. Maszgay would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to participating in
discussion(s) or vote(s) of Borough Council pertaining to appropriations for the Borough
Police Department, labor grievances involving Borough police officers, or other
matter(s) related to the Borough Police Department.
It is parenthetically noted that with regard to the collective bargaining process, is_
parenthetically Public mployee Relations Act provides as follows:
§ 1101.1801. Conflict of interest
(a) No person who is a member of the same local,
State, national or international organization as the employe
organization with which the public employer is bargaining or
who has an interest in the outcome of such bargaining which
interest is in conflict with the interest of the public employer,
shalt participate on behalf of the public employer in the
collective bargaining processes with the proviso that such
person may, where entitled, vote on the ratification of an
agreement.
(b) Any person who violates subsection (a) of this
section shall be immediately removed by the public employer
from his role, if any, in the collective bargaining negotiations
or in any matter in connection with such negotiations.
43 P.S. § 1101.1801. Since the Commission does not have the statutory jurisdiction to
administer or interpret the Public Employee Relations Act, it is recommended that Mr.
Maszgay obtain legal advice as to any potential impact of that Act.
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 Public Employee Relations Act.
Conclusion: Based upon the submitted facts that: (1) on April 21, 2016, Casimer
aszgay ( "Mr. Maszgay "� retired from his employment as a full -time police officer
with the Borough of Vandergrift ( "Borough "); (2) following his retirement from Borough
employment, W. Maszgay has remained a member of the Pennsylvania Fraternal Order
of Police "Fraternal Order of Police"), which is the bargaining gent for the regular
police officers of the Borough; (3) )the Fraternal Order of g Police provides legal
representation, advice, and counsel to the regular police officers of the Borough for
grievances and any other labor matters; (4) Mr. Mazsgay's son-in-law is employed as a
Borough police officer; and (5) on January 2, 2018, Mr. Maszgay took office as a
Borough Council Member, you are advised as follows.
Loperfito, 18 -519
ar1V! ch M, 2018
Page 5
As a Borough Council Member, Mr. Maszgay is a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq. Subiect to the statutory exclusions to the definition of "conflict" or "conflict
of interests as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(x) of the Ethics Act, Mr. Maszgay would have a conflict of interest in
matters before Borough Council that would financially impact him, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated.
Mr. Maszgay's son -in -law is not a member of his "immediate family" as that term
is defined by the Ethics Act. Under the submitted facts, the Fraternal Order of Police is
not a business with which Mr. Maszgay is associated because he is not a director,
officer, owner, employee, or holder of a financial interest in the Fraternal Order of
Police.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Mr. Maszgay, a member of his immediate family, or a business with which he or a
member of his immediate family s associated, Mr. Maszgay would not have a conflict of
interest under Section 1103(ya) of the Ethics Act with regard to participating in
discussion(s) or vote(s) of Borough Council pertaining to appropriations for the Borough
Police Department, labor grievances involving Borough police officers, or other
matter(s) related to the Borough Police Department.
Lastly, the pproppriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Borough Code or
the Public Employee Relations 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 actual/
received at the Commission within thirty (30) days of the dates
Advice ursuant to 51r Pa. Code § ?3.2(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,
t
. {
R Hittie yam J
Chief Counsel