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HomeMy WebLinkAbout90-603 SirottMr. Jack Sirott 90 -603 Sirott & Reimel 220 Radcliffe Street Box 708 Bristol, PA 19007 Re: Conflict, Public Official, Immediate Family, Municipal Authority, Collective Bargaining Agreement. Dear Mr. Sirott: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 29, 1990 This responds to your letter of September 26, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon municipal authority board members from participating in the collective bargaining process or voting on the collective bargaining agreement for a municipal authority. Facts: You represent the Lower Bucks County Joint Municipal Authority (Authority) which is a joint authority formed by the Township of Bristol and the Borough of Tullytown. The Authority is formed and operates pursuant to the Municipalities Authorities Act of 1945 as amended. The Board has six members, three of which are appointed from each municipality. The Authority operates both a water and sewer plant and has an office staff for administrative purposes. All Authority employees are members of the same international union but are represented by three separate bargaining units. Board member A has two sons employed by the Authority in bargaining unit 1; Board member B has two cousins employed by the Authority in bargaining unit 1 and B is a blood relation of Board member A; Board member C has a brother - in -law in bargaining unit 1, a sister in bargaining unit 2 and a wife and brother -in -law in bargaining unit 3 which is a supervisors union and Board member D who is a paid borough manager of one of the municipalities comprising the Authority wherein he is appointed by, directed and overseen by borough council, two members of which are employed by the Authority in bargaining units 1 and 2. In the past negotiations have first occurred in bargaining unit 1 followed by the acceptance of those negotiated benefits by bargaining unit 2. Although member D has Mr. Jack Sirott Page 2 appointed himself chairman of the committee to negotiate with the three bargaining units, additional members of the committee are the solicitor and managing engineer of the Authority; an invitation has been extended to all Board members to participate in the negotiation process including the determination of fringe benefits, compensation and other matters. You conclude by posing three questions under the Ethics Law: whether board members A, B, C or D have a conflict; whether any of the members may participate in the bargaining process or whether they are disqualified except for voting as provided for in 3(j) of the Act and whether these members have such an "interest in the outcome of the bargaining" as set forth in the Public Employee Relations Act so as to bar them from participating in the collective bargaining processes. Discussion: As a Board members for Lower Bucks County Joint Municipal Authority, each member is a public official as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. 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 Mr. Jack Sirott Page 3 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 and no public official /employee shall solicit or accept anything 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 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 cousin is not a familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit B from participating in the collective bargaining process or voting on the final ratification. Baker, Opinion 89 -016. The fact that B is a blood relation to member A is not operative since A and B are both members of the Authority board. Since the term "immediate family" defined above includes sons (child), sister and wife (spouse), Section 3(a) of the Ethics Law would prohibit both member A and C from participating in the negotiations during the collective bargaining process. The question of their ability to vote on the final ratification of the contract will be addressed infra. Davis, Opinion 89 -012. Thus, if A or C were to participate in the negotiating process, such action would be a use of the authority of office to obtain a private pecuniary benefit for members of their immediate family in contravention of the Ethics Law. Section 3(j) of the Ethics Law requires public disclosure of their abstention prior to a vote being taken on the matter as well as disclosing same in a written memorandum filed with the person responsible for recording the minutes. As to board member D, the two employees of the Authority who are also members of the council of which D is borough manager are not members of D's immediate family; however, the reciprocal Mr. Jack Sirott Page 4 employer /employee relationship at the Borough and Authority level has been held by the Commission to constitute a conflict. See Bassi, Opinion 86 -007. In such situations, the concern exists that the Authority board member would be placed in a situation of participating or voting for a contract for employees when two of those employees are members of council which in turn employs that Authority board member at the Borough. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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. As noted above, if a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. Mr. Jack Sirott Page 5 In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. In applying the above provisions of the Ethics Law to the instant matter, since board members A, C and D have conflicts, they may not be part of the negotiating team as to the collective bargaining process. See VanRensler, Opinion 90 -017, wherein the Commission held that school directors, whose members of their immediate families were school district employees, would be prohibited from participating in the negotiating process although they could vote on the final ratification of the contract provided the members of their immediate families were not treated any differently than any other employs in the bargaining unit. Thus, although the Ethics Law would restrict A, C or D from participating in the negotiation process, B could participate in the negotiating process. Turning to the question of the voting on the final ratification of the collective bargaining agreement, A, C and D as well as B could take action on the matter. VanRensler, supra. As to the third inquiry which has been raised regarding the applicability of the Public Employee Relations Act, that question may not be addressed since it is beyond the scope of the State 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 local Bucks County Joint Municipal Authority, each board member is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, board member B would not have a conflict as to two cousins who are employed by the Authority and therefore could participate in the negotiating process as well as vote on the final ratification of a collective bargaining agreement. Board members A, C and D would have a conflict since employees are either members of their immediate family or an employer and therefore those members could not participate in the negotiating process. A, C and D could vote on the final ratification of the contract providing the members of their immediate families are not treated any differently than any other member in the respective bargaining unit and providing that there is more than one person in the given bargaining unit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Jack Sirott Page 6 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 criminal 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 J2.12. Sincerely, 1 Vincent Dopko, Chief Counsel