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HomeMy WebLinkAbout18-523 DeLucaPHONE: 717 -783 -1690 TOLL FREE: 1 -800- 932 -0936 ADVICE OF COUNSEL April 17, 2018 To the Requester: Mr. Vito J. DeLuca, Esquire DeLuca Law Offices Dear Mr. DeLuca: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 18 -523 This responds to your letter dated February 14, 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 Fa�'S. § 1101 et sew , would impose prohibitions or restrictions upon a School Director for the Dallas S�iool District, who in a private capacity is employed as a Water Quality Specialist with Suez North America, with regard to voting to approve payment of the Dallas School District's regular monthly bills, where such bills would include a monthly utility bill from Suez North America for water usage. Facts: As Solicitor for the Dallas School District ( "School District "), you have been au -Trized by Christine Swailes ( "Ms. Swailes"), who is a School Director for the School District, to request an advisory from the Commission on her behalf. You have submitted facts that may be fairly summarized as follows. In December 2017, Ms. Swailes took office as a School Director for the School District. In a private capacity, Ms. Swailes is employed as a Water Quality Specialist with a corporation named "Suez North America" ( "Suez "). Ms. Swailes' job responsibilities include maintaining compliance with the Safe Drinking Water Act for eight public water systems in the area around Dallas, Pennsylvania and Bloomsburg, Pennsylvania. Ms. Swailes is not a member of the bargaining unit for the Suez employees, and she is not part of Suez management. Suez maintains a presence in nineteen states, produces 1006 million gallons of treated drinking water per day, and serves 5.3 million customers nationwide. Suez has headquarters in various locations, including state headquarters in Harrisburg, Pennsylvania. The School District is supplied with water by Suez. The School District cannot choose its water supplier and must obtain its water from Suez. DeLuca, 18 -523 April 17, 2018 Page 2 The narrow question that is posed by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon Ms. Swailes with regard to voting to approve payment of the School District's regular monthly bills, where such bills would include a monthly utility bill from Suez for water usage. Discussion: It is initially oted 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. It is further initially noted that this Advice is limited to addressing the narrow question posed. As a School Director for the School District, Ms. Swailes 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 if 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 wo 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: DeLuca, 18 -523 April 17, 2018 Page 3 § 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. "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. "Business. " An corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint 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 1103{1) 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 Commission has determined that a public official who, in a private capacity, is employed by a utility company would not have a conflict of interest with regard to approving payment of a standard monthly utility bill issued by his employer that is pre- fixed, routine, and uncontested. Pizonka /Rieder /Rittenhouse, Opinion 09 -007 (Citing DeLuca, 18 -523 April 17, 2018 Page 4 Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89 -023; Maholick, (pinion 90 -010). Howeverer, tTi—e �Commission furt efi r determined that such apublic official would have a conflict of interest under Section 1103(x) of the Ethics Act with regard to approving payment of his employer's bill(s) that would not meet the aforesaid criteria. Pizonka /Rieder /Rittenhouse, supra. Having established the above general principles, you are advised as follows. Suez is a business with which Ms. Swailes is associated in her capacity as an employee. Ms. Swailes generally would have a conflict of interest under Section 11 03(al of the Ethics Act as a School Director in matter(s) that would financially impact her or Suez. However, Ms. Swailes would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to approve payment of School District regular monthly bills that would include a monthly utility bill issued by Suez for water usage as long as such monthly utility bill from Suez would be pre - fixed, routine, and uncontested. As noted above, in each instance of a conflict of interest, Ms. Swailes would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11036) 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 otther 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 Public School Code. Conclusion: Based upon the submitted facts that: (1) in December 2017, Christine Swailes ( "Ms. Swailes ") took office as a School Director for the Dallas School District ( "School District "); (2) in a private capacity, Ms. Swailes is employed as a Water Quality Specialist with a corporation named "Suez North America" ( "Suez "); (3) Ms. Swailes' fob responsibilities include maintaining compliance with the Safe Drinking Water Act for eight public water systems in the area around Dallas, Pennsylvania and Bloomsburg, Pennsylvania; (4) Ms. Swailes is not a member of the bargaining unit for the Suez employees, and she is not part of Suez management; (5) Suez maintains a presence in nineteen states, produces 1006 million gallons of treated drinking water per day, and serves 5.3 million customers nationwide; (6) Suez has headquarters in various locations, including state headquarters in Harrisburg, Pennsylvania; (7) the School District is supplied with water by Suez; and (8) the School District cannot choose its water supplier and must obtain its water from Suez, you are advised as follows. As a School Director for the School District, Ms. Swailes is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §'110'1 et se g. Suez is a business with which Ms. Swailes is associated in her capacity as an employee. Ms. Swailes generally would have a conflict of interest under Section 1103(a) of the Ethics Act as a School Director in matter(s) that would financially impact her or Suez. However, Ms. Swailes would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to approve payment of School District regular monthly bills that would include a monthly utility bill issued by Suez for water usage as long as such monthly utility bill from Suez would be pre - fixed, routine, and uncontested. In each instance of a conflict of interest, Ms. Swailes 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 DeLuca, 18 -523 pnM, 2018 Page 5 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 (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, ZRobin 4M. Hittie Chief Counsel