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HomeMy WebLinkAbout18-567 WilsonPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 ADVICE OF COUNSEL November 19, 2018 To the Requester: Mr. Gregory J. Wilson City Manager City of Lock Haven Dear Mr. Wilson: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.aov 18 -567 This responds to your letters dated September 17, 2018, and September 27, 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 P-a.G:S. § 1101 et se q., would impose prohibitions or restrictions upon an individual serving as a Member of the City Council of the City of Lock Haven ( "City "), Pennsylvania, with regard to performing the duties of his public position, where the individual's fiancee is an applicant for the position of City Planner /Development Coordinator. Facts: As the City Manager, you have been authorized by Joel Long ( "Mr. Long ") west an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Long is a Member of City Council. Mr. Long is also employed as an Auditor with the Pennsylvania Department of the Auditor General. The City has a Council-Manager form of government under the Optional Third Class City Charter Law, 53 P.S. 41 f se q. et s. Pursuant to the Administrative Code of the City of Lock Haven, Pennsylvania ( "qty Administrative Code "), the pposition of City PlannerlDevelopment Coordinator is established within the City De artment of Administration, which is headed by the City Manager. The City Plan nerlDevelopment Coordinator is responsible to the City Manager for the administration, direction and supervision of City planning and community development services and activities. See, Part 3, Section 1 -303 of the City Administrative Code. City Council annually sets tFie wages of the City Planner/Development Coordinator and other City administrative staff. The City Plan nerlDevelopment Coordinator is mainly responsible for the application and administration of ggrants that the City receives from the Community Development Block Grant (" CDBG ") program and other sources, including various Wilson, 18 -567 November 19, 2018 Page 2 Commonwealth agencies and smaller contributors. The use of CDBG funds is determined annually by City Council after public hearings.. One annual use of CDBG funds to reimburse the City for wages and benefits of the City Planner /Development Coordinator for work done when administering CDBG applications and projects. The position of City PlannerlDevelopment Coordinator is currently vacant, and the position has been given a job title of "Director of Sustainable Community Development" for advertising purposes. Mr. Longs fiancee, Mitzi Gallagher ( "Ms. Gallagher "), is an applicant for the position of City Planner /Development Coordinator. Although Ms. Gallagher does not have the training or experience needed to perform the task of administering CDBG grants for the City, it is the intention of the City to have the successful applicant for the City Planner/Development Coordinator position trained to perform that task. If Ms. Gallagher would be the successful applicant, CDBG funds would be used to reimburse the City for up to thirty percent of her wages during training and thereafter for work done on CDBG projects. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Long with regard to performing the duties of his position as a Member of City Council, given that his fiancee is an applicant for the position of City Planner/Development Coordinator. 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. §§ 1107000 , (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a Member of Cit Council, Mr. Long is a public official subject to the provisions of the Ethics Act. It is parenthetically noted that in his capacity as an Auditor for the Pennsylvania Department of the Auditor General, Mr. Long is a public employee subject to 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. Q) 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 Wilson 18 -567 ber 19, 2018 Page 3 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 Edherein. 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 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. "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 "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 holdingg 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting comet, Section 11030? of the Ethics Act would require the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both Wilson, 18 -567 November 19, 2018 Page 4 orally and by filing a written memorandum to that effect with the person recording the minutes. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and public process" be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Wilson, 18 -567 ITo—vember 19, 2018 Page 5 In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. 5 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Long would have a conflict of interest as a Member of City Council in matters 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. During the time that Ms. Gallagher would be Mr. Long's fiancee, not his spouse, Ms. Gallagher would not be considered a member of Mr. Longs "immediate family" as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur dense , 557 Pa. 6 , 7 998) {Holding that a relative not encompassed by the g e family relationshi s listed in the Ethics Act's definition of the term "immediate family " —in that case, a son-in-law—would not be considered a member of immediate family). However, when Ms. Gallagher would become Mr. Long's spouse, she would then be considered a member of Mr. Long's "immediate family" as that term is defined in the Ethics Act. You are advised that at such times as Ms. Gallagher would be Mr. Long's fiancee and an applicant for the position of City Planner /Development Coordinator, absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Long, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Long would not have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a City Council Member in matter(s) pertaining to the hiring of a City Planner / evelopment Coordinator. However, if Ms. Gallagher would become Mr. Long's spouse while she would be an applicant for such position, Mr. Long would then have a conflict of interest in matter(s) pertaining to the hiring of a City Planner /Development Coordinator. You are further advised that if Ms. Gallagher would become employed as the City Planner /Development Coordinator, to the extent that Ms. Gallagher would be Mr. Long's spouse and not his fiancee while employed in such position, Mr. Long generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before City Council that would financially impact him or his spouselhis spouse's employment as the City Planner /Development Coordinator. In each instance of a conflict of interest, Mr. Long would be required to abstain from participation, which would include voting unless a voting conflict exception 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. Finally, the restrictions of Section 1103(f) of the Ethics Act would have to be observed whenever applicable. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability f 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 City Administrative Code. Conclusion: Based upon the submitted facts that: (1) Joel Long ( "Mr. Long ") is a Member of-City Council of the City of Lock Haven ( "City "), Pennsylvania; (2) Mr. Long is also employed as an Auditor with the Pennsylvania Department of the Auditor General; Philthe City has a Council- Manager form of government under the Optional Third Class y Charter Law, 53 P.S. § 41101, et seq.; (4) pursuant to the Administrative Code of e City of Lock Haven, Pennsylvania, the position of City Planner /Development Coordinator is established within the City Department of Administration, which is Wilson, 18 -567 November 19, 2018 Page 6 headed by the City Manager; (5) the City Planner /Development Coordinator is responsible to the City Manager for the administration, direction and supervision of City planning and community development services and activities; (6) City Council annually sets the wages of the City PlannerlDevelopment Coordinator and other City administrative staff; (7) the City PlannerlDevelopment Coordinator is mainly responsible for the application and administration of grants that the City receives from the Community Development Block Grant ( "CDBG ") program and other sources, including various Commonwealth agencies and smaller contributors; (8) the use of CDBG funds is determined annually by City Council after public hearings. (9) one annual use of CDBG funds that is approved by City Council is the setting aside of administration and planning funds to reimburse the City for wages and benefits of the City PlannerlDevelopment Coordinator for work done when administering CDBG applications and projects; (10) the position of City Plan nerlDevelopment Coordinator is currently vacant, and the position has been given a job title of "Director of Sustainable Community Development' for advertising purposes; (11) Mr. Long's fiancee, Mitzi Gallagher ( "Ms. Gallagher "), is an applicant for the position of City PlannerlDevelopment Coordinator; (12) although Ms. Gallagher does not have the training or experience needed to perform the task of administering CDBG grants for the City, It is the intention of the City to have the successful applicant for the City Planner/Development Coordinator position trained to perform that task; and (13) if Ms. Gallagher would be the successful applicant, CDBG funds would be used to reimburse the City for up to thirty percent of her wages during training and thereafter for work done on CDBG projects, you are advised as follows. As a Member of City Council, Mr. Long is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act' ), 65 Pa.C.S. § 1101 et sue. (It is parenthetically noted that in his capacity as an Auditor for the Pennsylvania De artment of the Auditor General, Mr. Long is a public employee subject to the Ethics Act. Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Long would have a conflict of interest as a Member of City Council in matters 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. During the time that Ms. Gallagher would be Mr. Long's fiancee, not his spouse, Ms. Gallagher would not be considered a member of Mr. Long's "immediate family" as that term is defined in the Ethics Act. However, when Ms. Gallagher would become Mr. Long's spouse, she would then be considered a member of Mr. Long's "immediate family" as that term is defined in the Ethics Act. At such times as Ms. Gallagher would be Mr. Longs fiancee and an applicant for the position of City Planner/Development Coordinator, absent some basis for a conflict of interest such as a private pecuniary benefit to Mr long, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Long would not have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a City Council Member in matter(s) pertaining to the hiring of a City Planner/Development Coordinator. However, if Ms. Gallagher would become Mr. Long's spouse while she would be an applicant for such position, Mr. Long would then have a conflict of interest in matter(s) pertaining to the hiring of a City PlannerlDevelopment Coordinator. If Ms. Gallagher would become employed as the City Planner/Development Coordinator, to the extent that Ms. Gallagher would be Mr. Long's spouse and not his fiancee while employed in such position, Mr. Long generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before City Council that would financially impact him or his spouselhis spouse's employment as the City Planner/Development Coordinator. Wilson, 18 -567 No- vember 19, 2018 Page 7 In each instance of a conflict of interest, Mr. Long would be required to abstain from particippation, which would include voting unless a voting conflict exception of Section 1103O') of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11036) of the Ethics Act would have to be satisfied in the event of a voting conflict. The restrictions of Section 1103(f) of the Ethics Act would have to be observed whenever applicable. 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 actual) received at the Commission within thirty (30) days of the dateotthis Advice ursuant to 51' Pa. Code § 93.2(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, .� ^ Y Robin M. Hittie Chief Counsel