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HomeMy WebLinkAbout18-524 BarlettaPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: Ms. Allison Barletta Dear Ms. Barletta: ADVICE OF COUNSEL April 20, 2018 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.12a.goy 18 -524 This responds to your letter dated February 19, 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 Fsa C S. § 1101 et sspA., would impose prohibitions or restrictions upon a member of a city council, whose brother is employed by a municipal authority, with regard to voting on the appointment of member(s) of the municipal authority board of directors. Facts: You request an advisory from the Commission based upon the following su`Bmitted facts. You are a Member of the City Council of the City of Hazleton. City Council consists of five Members. Your brother is employed with the Hazleton City Water Authority ( "Authority "). City Council appoints the Members of the Board of Directors ( "Board ") of the Authority. City Council does not vote on employment contracts for Authority employees. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would impose prohibitions or restrictions upon you with regard to voting on the appointment of Member(s) of the Authority Board; and (2) If you would have a conflict of interest under the Ethics Act as to voting on such appointment(s), whether you would be permitted to vote to break a tie vote of the other four City Council Members as to such appointment(s). Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. §§ 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 Barletta, 18 -524 April , 2018 Page 2 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 City Council Member, you are 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 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), 0). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" "conflict 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 Barletta 18 -524 prAif115, 2018 Page 3 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term if or "conflict of interest," 65 Pa.C.S. § 1102, a public officiallpublic 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 officiallpublic 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. Having established the above general principles, you are advised as follows. Your brother is a member of your "immediate family" as that term is defined in the Ethics Act. Per Commission precedent, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the appointment of Member(s) of the Authority Board because such Member(s) would exercise authorit over your brother with respect to his employment with the Authority. See, Confidential O inion, 05 -004; Elisco, %in'ori 00 -003; Woo�drin , Opinion 90- 00�nvo ving reciprocity of power); see also, pak, Advice 16-538; Kopas, Advice 11 -521. Section 11030) of the Ethics Act contains two voting conflict exceptions. The voting conflict exception for breaking a tie vote despite a conflict of interest is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 11030) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The only voting conflict exception that enables a memeer ova five member board such as City Council to vote despite a conflict of interest requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members require to abstain from voting under the provisions or the ttnics ,yct makes the ma - iora or otner to aii re uirea vote of approval unattaina e; an 2 prior to voting, such members with con acts under the Ethics Act must is(- ose their conflicts as required by Section 1 1030). When both of these conditions are met, such that the exception is applicable, the exception allows for voting only ---it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. Pavlovic, supra. Barletta, 18 -524 April 0, 2018 Page 4 Therefore, pursuant to Sections 1103(a) and 11030) of the Ethics Act, you would not be permitted to vote to break a 2 -2 tie vote of the other four City Council Members 6-6-the appointment of Member(s) of the Authority Board. You would not be able to vote on the appointment of Member(s) of the Authority Board unless so many Members of City Council would have conflicts of interest under tE-e--Et-hics Act as to such a ointments t at t ere wou not a enoug non -con icte Mem ers a to to e action. 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 he 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) you are a Member of the city Coun ce of the City of Hazleton, (2} City Council consists of five Members; (3) your brother is employed with the Hazleton City Water Authorit ( "Authority "); (4) City Council appoints the Members of the Board of Directors ( "Board "�of the Authority; and (5) City Council does not vote on employment contracts for Authority employees, you are advised as follows. As a City Council Member, you are a ublic official subject to the provisions of the Public Official and Employee Ethics Act Tamily" Ethics Act "), 65 Pa.C.S. § 1101 et she . Your brother is a member of your "immediate as that term is defined in the - Ethics Act. Per Commission precedent, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the appointment of Member(s) of the Authority Board because such Member(s) would exercise authority over your brother with respect to his employment with the Authority. Pursuant to Sections 1103(a) and 11030) of the Ethics Act, you would not be permitted to vote to break a 2 -2 tie vote of the other four City Council Members on the appointment of Member(s) of the Authority Board. You would not be able to vote on the appointment of Member(s) of the Authority Board unless so many Members of Cit Council would have conflicts of interest under the Et iii cs pct as to such a ointment s that there would not be enough non-conflicted Mem ers left to take action. 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 actuall received at the Commission within thirty (30) days of the date of is Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, Barletta, 18 -524 April 20, 2098 Page 5 delivery service, or by FAX transmission (717- -787 -0806. Failure to file such an appeal at the Commission within thirty (0) days may result in the dismissal of the appeal. Sincer y, y Robin M. Hittie Chief Counsel