HomeMy WebLinkAbout19-507 BarlettaPHONE: 717 -783 -1610
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To the Requester:
Ms. Allison Barletta
Dear Ms. Barletta:
it
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
February 27, 2019
FACSIMILE: 717 - 787 -0806
WEBSITE: www.ethics.pa.00v
19.507
This responds to your letter dated January 21, 2019, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), an Individual who would be elected as a
city mayor would have a conflict of interest with regard to performing the duties of her
public position, where: (1) the city police department maintains a list of towing
companies that are utilized on a rotating basis when vehicles need to be towed from
accidents or impounded; and (2) the individual Is the girlfriend of an owner of a towing
company that is on the list maintained by the city police department.
Facts: You request an advisory from the Commission based upon submitted
ate; the material portion of which may be fairly summarized as follows.
You are going to seek election as Mayor of the City of Hazleton ( "City ") for a term
of office that would begin in 2020.
The City Police Department maintains a list of towing companies (the "Towing
Company List') that are utilized on a rotating basis when vehicles need to be towed
from accidents or impounded. The Towing Company List is handled by the City Police
Department with no involvement by the City Mayor or the City Council. Five local
towing companies are on the Towing Company List. The owners or insurers of vehicles
that are towed from accidents or impounded pay the towing companies for the services
rendered. The City does not pay the towing companies, and the towing companies do
not pay the City for being on the Towing Company List.
You are the girlfriend of an owner of one of the five towing companies on the
Towing Company List.
Based upon the above submitted facts, the question that is presented is whether,
if you would be elected as City Mayor, the Ethics Act would impose prohibitions or
restrictions upon you with regard to performing the duties of your public position as a
Barletta, 19 -507
e ruary 27, 2019
Page 2
result of your relationship as the girlfriend of an owner of a towing company on the
Towing Company List.
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 disclosed all of the material facts.
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 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:
§ 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
Barletta, 19 -507
e ruary 27, 2019
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.
"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 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 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 'I 103(j) 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.
If you would be elected as City Mayor, upon assuming said position, you would in
that capacity be a public official subject to the provisions of the Ethics Act. You are
advised that there is no basis in the submitted facts upon which to conclude that you
would have a conflict of interest with regard to performing the duties of the position of
City Mayor as a result of your relationship as the girlfriend of an owner of a towing
company on the Towing Company List.
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
interetation of the Ethics Act. Specifically not addressed herein is the applicability of
rp
the Third Class City Code.
Conclusion: Based upon the submitted facts that: (1) you are going to seek
election as ayor of the City of Hazleton ( "City ") for a term of office that would begin in
2020; (2) the City Police Department maintains a list of towing companies the "Towing
Company List ") that are utilized on a rotating basis when vehicles need o be towed
from accidents or impounded; (3) the Towing Company List is handled by the City
Barletta, 19-507
F65-ru-q-j� 27, 2019
Page 4
Police Department with no involvement by the City Mayor or the City Council; (4) five
local towing companies are on the Towing Company List; (5) the owners or insurers of
vehicles that are towed from accidents or impounded pay the towing companies for the
services rendered; (6) the City does not pay the towing companies, and the towing
companies do not pay the City for being on the Towing Company List; and (7) you are
the girlfriend of an owner of one of the five towing companies on the Towing Company
List, you are advised as follows.
If you would be elected as City Mayor, upon assuming said position, you" would in
that capacity be a public official subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You are advised that
there is no basis in the submitted facts upon which to conclude that you would have a
conflict of interest with regard to performing the duties of the position of City Mayor as a
result of your relationship as the girlfriend of an owner of a towing company on the
Towing Company List.
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 writing and must be actual)
received at the Commission within thirty (30) days of the date of t is
vice ursuant to 51 Pa. Code § 13.2(h). The appeal may be
received p at the Commission by hand delivery, United States mall,
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.
Z Sinc 7ly , m�k-- Robin M. Hittttie
Chief Counsel