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ADVICE OF COUNSEL
March 20, 2018
Sean W. Logsdon, Esquire
Donald G. Karpowich, Attorney -at -Law, P.C.
Dear Mr. Logsdon:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.go_v
iiiF -01* 1
This responds to your letter dated February 6, 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
PETS. § 1101 et sec.., would impose prohibitions or restrictions upon a member and
president of a city council, who is employed by .a municipal authority, with regard to
participating in deliberations, votes, or other actions of city ouncil pertaining to the
nomination and appointment of members of the municipal authority board of directors.
Facts: You have been authorized by Robert Gavio ( "Mr. Gavio ") to request an
a visory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Mr. Gavio is a Member and President of the City Council of the City of Hazleton.
In addition to serving on City Council, Mr. Gavio is employed with the Hazleton City
Water Authority ("Authority"). Mr. Gavio has an employment contract with the Authority
that was negotiated and entered into before he took his seat on City Council in January
2016. You state that Mr. Gavio's employment contract with the Authority will remain in
effect throughout his term on City Council and until he retires from his employment with
the Authority.
City Council nominates and appoints the Members of the Board of Directors
( "Board ") of the Authority. There are currently two appointments to the Authority Board
that are up for consideration by City Council. You state that Mr. Gavio's employment
structure with and compensation from the Authority would not be subject to modification
or voted upon by any Members appointed to the Authority Board by the current City
Council.
Based upon the above submitted facts, you ask whether Mr. Gavio would have a
conflict of interest with regard to participating in deliberations, votes, or other actions of
City Council pertaining to the nomination and appointment of Members of the Authority
Board.
Lo sd�on, 18 -520
March 20, 2018
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 discllosed all of the material facts.
As a Member and President of City Council, Mr. Gavio 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.
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
pprovided 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), (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
Log sdon, 18 -520
March 20, 2018
Page 3
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.
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.
Per State Ethics Commission precedent, a public official /public employee
generally would have a conflict of interest in matters pertaining to a person who, in a
different capacity, has authority or control over the public official/public employee. See,
Confidential Opinion 05004; Elisco, Opinion 00 -003; Woodring, Opinion 90 -001
involving reciprocity of power }.
Having established the above general principles, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, Mr. Gavio would have a conflict of
interest in his capacity as a Member and President of City Council with regard to
participating in deliberation(s), vote(s), or other action(s) of City Council pertaining to the
nomination and appointment of Member(s) of the Authority Board due to his status as
an Authority em oyee. Cf., Butler, Advice 16 -559; Barbin Advice 16 -509; Schrempf,
Advice 05 -529; .Kynett, Advice 03 -512; Welsh, Advice 02 -�37; Tobin, Advice OU -502.
This is because although Mr. Gavio has an emptoyment contract witFthe Authority hat
will remain in effect until his retirement, the Authority Board would still have overall
authority or control over Mr. Gavio's employment subject to the terms of the contract.
As noted above, in each instance of a conflict of interest, Mr. Gavio 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.
Lo sd�on, 18 -520
March 20, 2018
Page 4
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 Third Class City Code or the Municipality Authorities Act.
Conclusion. Based upon the submitted facts that: (1) Robert Gavio ( "Mr. Gavio ")
is a Member and President of the City Council of the City of Hazleton; 1111 in addition to
serving on City Council, Mr. Gavio is employed with the Hazleton City Water Authority
( "Authority "); (3) Mr. Gavio has an employment contract with the Authority that was
negotiated and entered into before he took his seat on City Council in January 2016; (4)
Mr. Gavio's employment contract with the Authority will remain in effect throughout his
term on City Council and until he retires from his employment with the Authority; (5) City
Council nominates and appoints the Members of the Board of Directors ( "Board ") of the
Authority; (6) there are currently two a ppointments to the Authority Board that are up for
consideration by City Council; and �7) Mr. Gavio's employment structure with and
compensation from the Authority would not be subject to modification or voted upon by
any Members appointed to the Authority Board by the current City Council, you are
advised as follows.
As a Member and President of City Council, Mr. Gavio is a public official subject
to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seg. Pursuant to Section 1103(a) of the Ethics Act, Mr. Gavio would
have a conflict ointerest in his capacity as a Member and President of City Council with
regard to participating in deliberation(s), votM�Iember(s) or other action(s) of City Council
pertaining to the nomination and appointment of the Authority Board due
to his status as an Authority employee. In each instance of a conflict of interest, Mr.
Gavio 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 actually
received at the Commission within thirty (30) days of the date
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 (7 ?7 7870806). Failure to
Logsdon, 18 -520
Mach h 20, 2018
Page 5
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
X,2 j - U /•
Robin M. Hittie
Chief Counsel