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HomeMy WebLinkAbout19-512 HaleseyPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 f , STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL March 15, 2019 To the Requester: Mr. Peter J. Halese , Esquire Maiello Brungo & Maiello Dear Mr. Halesey: FACSIMILE: 717 -787 -0806 WEBSITE; www.ethics.pa.gov 19 -512 This responds to your letter dated February 5, 2019, 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 PAS. et se q., would impose prohibitions or restrictions upon an individual with regard duties of his position as a member and president of a borough council as a result s potential employment —or if hired, his actual employment —as a clerk for the borough. Facts: You have been authorized by Peter J. Quinn, Esquire ( "Mr. Quinn ") to request an aallvisory from the Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. In October 2018, Mr. Quinn was appointed to fill a vacan on Council for the Borough of Midland ( "Borough "). Mr. Quinn is currently serving as cy President of Borough Council. Due to budgetary concerns, Borough Council decided to restructure the Borough's administrative staff instead of immediately replacing the Borough Secretary. In relation to the restructuring of the Borough's administrative staff, Mr. Quinn has offered to perform services for the Borough as a clerk ( "Borough Clerk "). It is antited that in the role of a Borough Clerk, Mr. Quinn would not perform the statutory duties of cipathe position of Borough Secretary or Borough Treasurer and that his duties would be administrative or clerical in nature. It is further anticipated that as a Borough Clerk, Mr. Quinn would not have supervisory authority over other Borough employees. Mr. Quinn has been advised by the Borough Solicitor that in order to avoid the appearance of a conflict of interest, he should abstain from voting on the approval of the Borough payroll. Mr. Quinn has further been advised that he should abstain from participating in any decision that would affect the terms and conditions of employment of the Borough's administrative staff. The narrow question that is posed by your advisory request is whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Quinn with regard to performing Haiese , 19 -512 aM rch 15, 2019 Page 2 the duties of his position as a Member and President of Borough Council as a result of his potential employment —or if hired, his actual employment —as a Borough Clerk. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S.§§1 107(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), (121. An advisory only affords a defense to the extent the requester has truthfully disclosed of the material facts. It is initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. It is further initially noted that this Advice is limited to addressing the narrow question posed. As a Member and President of Borough Council, Mr. Quinn 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 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). Halese , 19 -512 aM rch 15, 2019 Page 3 The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. 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 ofi p, ublic office /employment. or confidential information received by holding such a public position for the private ecuniary benefit of the public official/public employee himself, any member of his immed ate 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 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. Section 1.103(a) of the Ethics Act would prohibit Mr. Quinn from using the authority of his position as a member and President of Borough Council or confidential information received by being 16 such position to advance an opportunity of employment with the Borough. In his capacity as a Member and President of Borough Council, Mr. Quinn generally would have a conflict of interest in matters pertaining to the hiring of a Borough Clerk given his interest in working in such position. Such matters would include but would not be limited to determining the necessary qualifications for the position of Borough Clerk, reviewing applications, or screening or interviewing applicants. Mr. Quinn specifically would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in or voting in favor of the hiring of himself for the position of Borough Clerk. Mr. Quinn would be hired as a Borough Clerk, he generally would have a conflict Halese ,19-512 a101 rcfi 5, 2019 Page 4 of interest in matter(s) before Borough Council pertaining to his Borough employment or to individual(s) who would exercise authority over him with respect to his Borough employment. Mr. Quinn specifically would have a conflict of interest with regard to voting on a Borough payroll that would include payment of compensation to him as a Borough Clerk unless: (1) Mr. Quinn would abstain fully from participation in matters pertaining to the hiring of a Borough Clerk, including ut not limited to the determination of the compensation for the position of Borough Clerk; and (2) the compensation to be paid to Mr. Quinn would be pre - fixed, routine, and uncontested, and would not include any amounts that would not be pre- fixed, routine, and uncontested. Cf., Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89 -023; Maholick, (pirnon J- 0010. As noted above, in each instance of a conflict of interest, Mr. Quinn 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 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 Borough Code. Conclusion: Based upon the submitted facts that: (1) in October 2018, Peter J. uinn, sgir� ( "Mr. Quinn "} was appointed to fill a vacancy on Council for the Borough of Midland ( "Borough "); (2) Mr, Quinn �s currently serving as President of Borough Council; (3) due to budgetary concerns, Borough Council decided to restructure the Borough's administrative staff instead of immediately replacing the Borough Secretary; (4) in relation to the restructuring of the Borough's administrative staff, Mr. Quinn has offered to perform services for the Borough as a clerk ( "Borough Clerk "); (5) it is anticipated that in the role of a Borough Clerk, Mr. Quinn would not perform the statutory duties of the position of Borough Secretary or Borough Treasurer and that his duties would be administrative or clerical in nature; (6) it is further anticippated that as a Borough Clerk, Mr. Quinn would not have supervisory authority over other Borough employees; (7) Mr. Quinn has been advised b the Borough Solicitor that in order to avoid the appearance of a conflict of interest, he should abstain from voting on the approval of the Borough payroll; and (8) Mr. Quinn has further been advised that -he should abstain from participating in any decision that would affect the terms and conditions of employment of the Borough's administrative staff, you are advised as follows. As a Member and President of Borough Council, Mr. Quinn is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act" , 65 Pa.C.S. § 1101 et seg. Section 1103(a) of the Ethics Act would prohibit Mr. Quinn from using the authorit of y his position as a Member and President of Borough Council or confidential information received by being in such position to advance an opportunity of employment with the Borough. In his capacity as a Member and President of Borough Council, Mr. Quinn generally would have a conflict of interest in matters pertaining to the hiring of a Borough Clerk liven his interest in working in such position. Such matters would include but would not be limited to determining the necessary qualifications for the position of Borough Clerk, reviewing applications, or screening or interviewin applicants. Mr. Quinn specifically would have a conflict of interest under Section 1103 {a of the Ethics Act with regard to participating in or voting in favor of the hiring of himselff or the position of Borough Clerk. If Mr. Quinn would be hired as a Borough Clerk, he generally would have a conflict of interest in matter(s) before Borough Council pertaining to his Borough employment orto individual(s) who would exercise authority over him with respect to his Borough employment. Mr. Quinn specifically would have a conflict of interest with regard to voting Halese , 19 -512 aM rch 15, 2019 Page 5 on a Borough payroll that would include payment of compensation to him as a Borough Clerk unless: (1) Mr. Quinn would abstain fully from participation in matters pertaining to the hiring of a Borough Clerk, including but not limited to the determination of the compensation for the position of Borough Clerk; and (2) the compensation to be paid to Mr. Quinn would be pre- fixed, routine, and uncontested, and would not include any amounts that would not be pre - fixed, routine, and uncontested. In each instance of a conflict of interest, Mr. Quinn 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. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, this 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 orif you have anyreason 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 actually received at the Commission within thirty (30) days of the date of this 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. Sincer y, Robin M. Hittie Chief Counsel