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HomeMy WebLinkAbout90-569 SimaticMr. John J. Simatic Southwestern Pennsylvania Water Authority Greene and Washington Streets P.O. Box 187 Jefferson, PA 15344 Dear Mr. Simatic: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 13, 1990 . 90 -569 Re: Conflict, Public Official, Immediate Family, Municipal Authority, Son, Son -in -law, Union Contract. This responds to your letter of May 16, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a municipal authority member from voting on a union contract for his son or son -in -law. Facts: As manager for the Southwestern Pennsylvania Water Authority Board of Directors, hereinafter Authority, you advise that the Board is negotiating an agreement with the employees who are represented by the United Steel Workers of America. One of the board members has a son employed and another board member has a son -in -law employed at the Authority. You inquire 9 as to whether the board member in question may vote on the union contract. Additionally, if two or three members of the seven member board abstain, you inquire as to whether a motion may be passed by four votes which is a majority of the board or whether a majority of the voting members would be sufficient. Discussion: As a Board Members for Southwestern Pennsylvania Water Authority, the two individuals are public officials as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Mr. Joseph J. Simatic Page 2 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to .a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the Mr. Joseph J. Simatic Page 3 law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since son- in- law is not within the familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit that board membek from voting on the union contract as to his son -in -law. Baker, Opinion 89 -016. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since son is in the familial relationship delineated above, Section 3(a) of the Ethics Law would otherwise prohibit the other board member from voting on the union contract. However, it is noted that his son would be affected to the same degree as 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. Therefore since his son would be a member of employees covered by the union contract who would be in a class/sub-class, Section 3(a) of the Ethics Law would not restrict such activity provided his son is in a class /sub -class consisting of more than one person and provided his son is affected to the exact same degree as all other members of the class /sub - class. Davis, Opinion 89- 012. The third question you pose may not be addressed sin.(e the issue of what constitutes a sufficient number of votes to pass a motion is beyond the scope of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As members of Southwestern Pennsylvania Water Authority, the two members are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict a board member from voting on a contract which would include his son -in -law who is not a member of his immediate family as that term is defined under the Ethics Law. Section 3(a) of the Ethics Law would otherwise prohibit board member from voting for his son who is a member of his immediate family as that term is defined under the Ethics Law; however, the board member would not be precluded from voting for his son for union contract provided his son is in a class /sub -class consisting of Mr. Joseph J. Simatic Page 4 more than one person and provided his son is affected to the exact same degree as all other members of the class /sub - class. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 c4fminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. cerely, Vincent 'J. Dopko, Chief Counsel