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HomeMy WebLinkAbout91-605 FalatovichDear Attorney Falatovich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Mr. Gary A. Falatovich, Esquire Fisher, Long & Rigone Robinson Building 101 West Pittsburgh Street Greensburg, PA 15601 ADVICE OF COUNSEL December 19, 1991 91 -605 Re: Conflict, Public Official /Employee, Borough Council Member, Immediate Family, Spouse, Spouse Employed by Borough Municipal Authority, Child, Child Employed as Borough Police Officer, Vote, Use of Authority of Office. This responds to your letter of October 23, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon two Borough Council Members with regard to matters involving their immediate family members (spouse & child) who are, respectively, an employee of the Borough Municipal'Authority and a member of the Borough Police Force. Facts: Noting that for the past several years, your office has acted as Solicitor for the Borough of Avonmore, a small municipality located in the Northeastern section of Westmoreland County, you seek the advice of the State Ethics Commission on behalf of two Borough Council Members with regard to their prospective participation in matters involving immediate family members. You state that to date, both individuals have voluntarily refrained from any involvement that could possibly be construed as an ethics violation. As for Council Member Mrs. Diana. Rumbaugh, you state that Mrs. Rumbaugh resides in the Borough with her husband, Mr. Barry Rumbaugh. Mr. Rumbaugh is employed by the Avonmore Borough Municipal Authority ( "Authority "). The Authority is a municipal Gary A. Falatovich, Esq. December 19, 1991 Page 2 corporation established by the Borough several years ago to handle the sewerage and water systems. Mr. Rumbaugh was an employee of the Authority prior to Mrs. Rumbaugh's election to Council. Over the past several months, questions have arisen in Council regarding the manner in which the Authority was handling issues relating to water problems in the Borough. The Borough has had difficulty with low water levels and drought conditions over the last several months and the Authority is involved in efforts ,to bring water into the Borough from outside sources. Heated discussions have -been held in Council regarding how water should be supplied to the Borough. There has also been some discussion with respect to Council dissolving the Authority, or some other entity assuming the responsibility for water distribution. Given her husband's employment. with the Authority, Mrs. Rumbaugh is concerned that a violation of the Ethics Law could result if she were to participate in discussions or voting with respect to issues involving the Authority. You therefore seek an advisory opinion from this Commission as to the nature and extent to which Mrs. Rumbaugh may become involved in discussions or in voting with respect to the Authority. You specifically inquire as to whether any direct or indirect financial interest Mrs. Rumbaugh may have by virtue of her husband's employment would preclude her from any such participation in issues relating to the Authority. You additionally ask whether a distinction can be made between Mrs. Rumbaugh's actual voting on a matter involving the Authority and her mere participation or offering of her opinion with respect to that entity. That is, even if Mrs. Rumbaugh were precluded from voting on matters involving the Authority, you ask whether she may still participate in discussions and offer her opinion with respect to same. As for Council Member Mr. Harvey Shafer, similar questions are raised. Mr. Shafer's son, James Shafer, is a member of the Avonmore Borough Police Force. Mr. Shafer does not reside with his son, but rather, the son maintains a separate residence with his wife and children. It is your belief that James Shafer became a police officer for the Borough prior to Harvey Shafer's election to Council. Your inquiry is focused upon the nature and extent to which Mr. Shafer may participate in matters before Council which involve the Police Department. Moreover, Mr. Shafer is concerned that if he serves as a member of the Police and Public Safety Committee as part of his' duties as a Council Member, such may constitute a violation of the Ethics Law. The Police and Public Safety Committee is a sub - committee of Council comprised of three of the seven Council Members, which is designed to act Gary A. Falatovich, Esq. December 19, 1991 Page 3 as a liaison between the Police, Council, and other individuals involved with public safety. You are specifically requesting an advisory opinion from this Commission as to whether Mr. Shafer is precluded from voting on or participating in discussions concerning matters involving the Police because of his son's employment as a police officer. You are also requesting an opinion as to whether a violation of the Ethics Law would occur if Mr. Shafer were to sit on the Police and Public Safety Committee. Discussion: As Council Members for the Borough of Avonmore, Mrs. Diana Rumbaugh and Mr. Harvey Shafer are public officials as that term is defined under the Ethics Law, and hence each is 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 of his immediate family or Gary A. Falatovich, Esq. December 19, 1991 Page 4 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 law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. 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 Gary A. Falatovich, Esq. December 19, 1991 Page 5 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. 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. In applying the above provisions of the Ethics Law to the specific inquiries which you have raised, it is clear as to both Council Members Rumbaugh and Shafer that the circumstances which you have submitted would not constitute an "across- the - board" conflict so as to preclude them from serving on Council, or to preclude Mr. Shafer from serving on the Police and Public Safety Committee. Rather, there would be instances where conflicts of interest would arise for these public officials, and their conduct would have to be in compliance with the requirements of the Ethics Law pertaining to conflicts of interest. Pursuant to Section 3(a) of the Ethics Law, a Council Member would have a conflict of interest in using the authority of office or confidential information received through holding office for the private pecuniary benefit of the Council Member, any member of the immediate family of the Council Member, or any business with which the Council Member or an immediate family member is associated. As to Council Member Rumbaugh, matters before Council which could result in a private pecuniary benefit for her husband would include, for example, questions as to his salary or as to his maintaining a gainful position of employment; questions as to dissolving the Authority, which could terminate Mr. Rumbaugh's Gary A. Falatovich, Esq. December 19, 1991 Page 6 employment; and any assumption of the Authority's responsibilities by another entity. These are only examples, of course, and there would be other circumstances where a private pecuniary benefit could result from the use of authority of office or the use of confidential information received through holding office. This Advice will not engage in speculation as to what those other circumstances might be, and Mrs. Rumbaugh may of course seek further advice from this Commission should further specific circumstances arise. There would be no distinction which could be made for purposes of the Ethics Law between a Council Member's actually voting on a matter and "merely" participating or offering an opinion with respect to a matter before the governmental body. The use of "authority of office or employment" as defined in the Ethics Law and interpreted by this Commission is not limited to voting but would include participation of any nature whatsoever, including but not limited to participating in discussions, offering an opinion, and lobbying for a particular result. The above principles would apply in like fashion to Mr. Shafer. It seems that the only unique question which you have raised as to Mr. Shafer involves his status as a member of the Police and Public Safety Committee. As noted above, the Ethics Law would not specifically prohibit Mr. Shafer from serving on that Committee. Nevertheless, in that it is a sub - committee of Council and is, for purposes of this Advice, acting in an official capacity as an arm of the Council, there would likely be instances of conflicts of interest arising for Mr. Shafer both with regard to his participation on Council and on the Police and Public Safety Committee. For example, if the Committee were to be involved in contract negotiations involving the police officers, Mr. Shafer would have a conflict of interest and could not participate in such contract negotiations. Van Rensler,, Opinion 90 -017. However, as to each of these Council Members there could be some circumstances which would fit within the exclusionary language of the definition of "conflict of interest," where their participation would be permitted. See, e.a., Van Rensler, supra, as to voting on a final contract affecting an immediate family member as a member of a subclass containing more than one member, with the immediate family member affected exactly as the other members of the subclass. But see also, Mattie, Advice 91 -508, as to prohibitions against receiving confidential information which, if disclosed, could defeat the bargaining process for such contracts. In each instance of a conflict of interest, the Council Member involved would be required to abstain from any participation in the matter whatsoever, and to comply with the Gary A. Falatovich, Esq. December 19, 1991 Page 7 disclosure requirements of Section 3(j) which include publicly stating the abstention and the reasons for same, both orally and by filing a written memorandum to that effect with the secretary recording the minutes. 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As Council Members the Borough of Avonmore, Mrs. Diana Rumbaugh and Mr. Harvey Shafer are public officials subject to the provisions of the Ethics Law. Mrs. Rumbaugh's spouse is a member of her immediate family, and Mr. Shafer's son is a member of his immediate family. Mrs. Rumbaugh would have a conflict of interest, for example, in matters involving her husband's salary or maintenance of a gainful position of employment with the Avonmore Borough Municipal Authority; the prospective dissolution of the Authority which would effectively terminate her husband's employment; and any assumption of the Authority's responsibilities by another entity. Mr. Shafer would have a conflict of interest, for example, in matters involving his son's salary or maintenance of a gainful position of employment with the Avonmore Borough Police Force. The prospect of such conflicts of interest would not preclude service on Borough. Council or on the Police and Public Safety Committee. However, in each instance of a conflict of interest, the Council Member would be required to abstain from any participation of any nature whatsoever, including but not limited to voting, participating in discussions, offering an opinion, or lobbying to obtain a particular result. In each instance of a conflict of interest, the Council Member would be required to comply with the disclosure requirements of Section 3(j). of the Ethic Law as noted above. 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 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 Gary A. Falatovich, Esq. December 19, 1991 Page 8 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 52.12. erely, Vincent J. Dopko Chief Counsel