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HomeMy WebLinkAbout18-568 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: i STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 30, 2018 FACSIMILE: 717-787-0806 WEBSITE: www.ethics. a. ov This responds to your letter dated September 25, 2018, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 577S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as an A of B, which is the governing body of C, Pennsylvania, with regard to voting on an annual C budget that would contain line items allocating funds to the D, the E, and C divisions and departments for the salaries and benefits of C employees, where: (1) the individual's daughter is employed with the C as an F for the D; and (2) the husband of the individual's daughter is employed with the C as a G with the E. Facts: You request a confidential advisory from the Commission based upon su5mitted facts, the material portion of which may be fairly summarized as follows. You are in your first year of service as an A of B, which is the governing body of the C. Your daughter is employed with the C as an F for the D. The D sets the salaries of the Fs. Your daughter's husband is employed with the C as a G with the E. The salaries of the Gs are set by a collective bargaining agreement that must be approved by B. B annually votes on a C budget that contains line items allocating funds to the D, the E, and C divisions and departments for the salaries and benefits of C employees. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to voting on the 2019 C budget. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the 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 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 an A of B, you are a public official subject to the provisions of the Ethics Act. Confidential Advice, 18-568 overner Page 2 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 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 "Gonflict 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 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 Confidential Advice, 18-568 November Page 3 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 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. 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 votins, 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 con ict, Section 1103Q) of the Ethics Act would require the public official/public employee to abstain andd to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the "class/subclass exclusion" set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. In order for the class/subclass exclusion to applyy, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. §� 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclus on is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Your daughter is a member of your "immediate family" as that term is defined in the Ethics Act. 65 Pa.C.S. § 1102. Your daughter's husband ---your son -in -law —is not a member of your "immediate family" as that term is defined in the Ethics Act. Cf., PuTice v. State Ethics Commission, Confidential Advice, 18-568 ovem er Page 4 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 1998) (Holding that a relative not encompasspd y the family relationships listed in the Ethics Act's definition of the term "immediate Tamil "—in that case, a son -in -law —would not be considered a member of immediate Tamily. Therefore, a financial impact upon your son-in-law would not, in and of its, form the basis for a conflict of interest for you. Subject to the de minimis exclusion and the class/subclass exclusion, ursuant to Section 1,M(a of the Ethics Act, you generally would have a conflict ofinterestin matters before B that would financially impact you, a member of your immediate family such as your daughter, or a business with which you or a member of your immediate family is associated. You are advised that you would have a conflict of interest with regard to voting on line item(s) of the 2019 C budget that would include funding for your daughter's salary or employment benefits unless the class/subclass exclusion to the definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, you 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. 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 H. Conclusion: Based upon the submitted facts that: (1) you are in your first year of service as an A of B, which is the governing body of C, Pennsylvania; �2�your daughter is employed with the C as an F for the D; (3) the D sets the salaries ohe Fs; J4� your daughter's husband is employed with the C as a G with the E; (5) the salaries ote Gs are set by a collective bargaining agreement that must be approved by B; and (6) B annually votes on a C budget that contains line items allocating funds to the D, the E, and C divisions and departments for the salaries and benefits of C employees, you are advised as follows. As an A of B, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et she . Your daughter is a member of your "immediate family" as that term is defineTin the Ethics Act. 65 Pa.C.S. § 1102. Your daughter's husband ---your son -in -law —is not a member of your "immediate family" as that term is defined in the Ethics Act. A financial impact upon your son-in-law would not, in and of itself, form the basis for a conflict of interest for you. Subject to the de minimis exclusion and the class/subclass exclusion set forth in the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a of the Ethics Act, you generally would have a conflict of interest in matters before B t at would financially impact you, a member of your immediate familysuch as your daughter, or a business with which you or a member of your immediate amil is associated. You would have a conflict of interest with regard to voting on line items) of the 2019 C budget that would include funding for your daughter's salary or employment benefits unless the class/subclass exclusion to the definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, you 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 Confidential Advice, 18-568 avern er Page 5 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 actuallLi received at the Commission within thirty (30) days of the dated Advice ursuant to 51 Pa. Code § f3.2(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, ?4 ob�in M. Hittie Chief Counsel