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HomeMy WebLinkAbout94-518 OReillyTimothy P. O'Reilly 428 Forbes Avenue 705 Lawyers Building Pittsburgh, PA 15219 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 2, 1994 94 -518 Re: Conflict, Public Official, Immediate Family, Council Member, Step -Son, Brother -in -Law, Police Officers, Use of Authority of office, Confidential Information, Employment by Cable Company, Complaints about Cable Company, Vote. Dear Mr. O'Reilly: This responds to your letter of February 3, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon Members of Borough Council from voting on matters affecting a step -child and a brother -in -law who are part -time police officers, and further, whether the Ethics Law presents any prohibitions or restrictions upon a Borough Council Member who is employed by the local cable company that provides service for the Borough. Facts: You have submitted a request for advice as to matters relating to three Members of the East McKeesport Borough Council. The Borough Council, by unanimous vote, has directed you to seek this advisory. This request concerns Council Members Harry Vetterly and Barbara Montz and their familial relationships with part -time police officers and Council Member David Lewis and his employment with the local cable company that serves the Borough. First, Mr. Harry Vetterly, the retired Chief of Police, took office January 3, 1994. Mr. Vetterly and Mr. Jeff Varchetto's mother were married from August, 1974 until June, 1993. Jeff Varchetto is a part -time police officer and may also be a candidate for other employment with the borough in the future. You state that Mr. Varchetto is 36 years old, resides in a separate municipality, apart from Mr. Vetterly, and has so resided separately since 1979. At no time did Mr. Vetterly ever adopt or otherwise take steps to have Mr. Varchetto declared a dependent. O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 2 Mr. Vetterly seeks advice as to the propriety of voting on any measure involving Mr. Varchetto, such as voting on salaries and contracts for police officers including Mr. Varchetto, and voting on his appointment to any other position with the borough. Second, Ms. Barbara Montz's brother -in -law, her husband's brother, William Montz is a part -time police officer with the borough. A similar question is raised as to whether Ms. Montz may vote on any matter relating to her brother -in -law. Third, Mr. David Lewis is employed by American Cable Vision which is the cable company serving East McKeesport. At the organizational meeting in January, 1994, Mr. Lewis was appointed as the Council Member in charge of handling cable problems and complaints from individuals in the Borough regarding the cable company. Mr. Lewis is an electronics technician employed as an outside installer and repairman. He is paid hourly and is a member of the local union. He is not involved in any administration or policy making of the cable company. In his Council position, he would be called upon to hear complaints or grievances residents have and present them to the cable company for consideration or bring them before Counsel for further discussion and review. He would also be involved in Borough matters concerning the cable company including voting on regulating rates and participating in rate negotiations. Based upon the above, you request an advisory from the State Ethics Commission as to the applicability of the Ethics Law to the three Council Members. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Council Members for the Borough of East McKeesport, Harry Vetterly, Barbara Montz and David Lewis are public officials 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. O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 3 The following terms are defined in the Ethics Law as follows: Section 2. Definitions. r (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. "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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 4 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 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 and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 5 You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public 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 official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In responding to your specific inquiries, the Ethics Law will be applied to the three Council Members in seriatim. First, as to Harry Vetterly, in this case, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Mr. Vetterly and his step -son are not in a familial relationship delineated above, Section 3)(a) of the Ethics Law would not restrict his prospective official participation in matters pertaining to the police contract, the Police Department, or future employment of Mr. Varchetto with the Borough. However, this Advice is conditioned upon the assumption that neither Mr. Vetterly nor any immediate family member, nor any business with which he or a member of his immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from his proposed conduct. See, Baker, Opinion 89 -016; Cowden, Advice 93 -568. As. -for Ms. Barbara Montz, the answer would be the same as for Mr. Vetterly. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Ms. Montz and her brother -in -law are not in a familial relationship delineated above, Sections 3(a) of the Ethics Law would not place .any restrictions. upon Ms. Montz's prospective official participation in matters pertaining to the Police Department and police contract. Again, this Advice is conditioned upon the assumption that neither Ms. Montz, her husband, nor any other immediate family member, nor a business with which she or a member of her immediate family is asociated, as defined in the Ethics Law, would receive a private pecuniary benefit from her proposed conduct. O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 6 As to Mr. David Lewis, it is initially noted that the Ethics Law would not restrict him as a Member of Borough Council from also being employed by the local cable company, unless that work was adverse to or inherently incompatible with the duties and responsibilities of a Council Member. Conflicting or adverse interests exist where a public official represents two competing interests simultaneously. Further, as stated above, Section 3(a) of the Ethics Law prohibits public officials from using the authority of public office for the private pecuniary benefit of the public official himself, or a business with which he is associated. American Cable Vision, the company where Mr. Lewis is employed, is a business with which he is associated. In Mr. Lewis' case, adverse interests can exist if, in his position as Council Member, irrespective of whether he is the Council Member in charge of cable problems, he would have to vote on or review, or bring before Council for further review or discussion, any matter relating to .American Cable Vision, including complaints from residents of the Borough. This Advice is based on established Commission precedent as set forth in Miller, Opinion 89 -024, and Kannebecker, Opinion 92 -010. In Miller, it was held that matters which came before a public official involving his private business or private clients place that public official in a situation where he is faced with conflicting interests. In his private capacity, a duty is owed to his private clients, while in his capacity as a public official, his primary duty is to act in the best interest of the governmental body. The Commission in Kannebecker held that a public official had a conflict as to individuals who had matters pending before the township when the public official was an attorney for those individuals in unrelated matters. In each instance of a conflict of interest, he would be required to abstain from any participation of any nature and to satisfy the disclosure requirements of section 3(j) as set forth above. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability cif 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 Members of East McKeesport Borough Council, Harry Vetterly, Barbara Montz and David Lewis are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict Mr. Vetterly or Ms. Montz from voting on any matter involving the East O'Reilly, Timothy P., 94 -518 March 2, 1994 Page 7 McKeesport Police Department where Mr. Vetterly's step -son and Ms. Montz's brother -in -law serve as part -time police officers since they are not members of the respective Council Members' immediate family who is not a member of his immediate family as that term is defined under the Ethics Law. Similarly, Mr. Vetterly would not be restricted as to any other matter, including employment with the Borough, as it relates to Mr. Varchetto. As to Mr. Lewis, he would have a conflict as to any matter relating to his employer, the local cable company, which comes before him as a Borough Council Member. In each instance of a conflict of interest, he would be required to abstain from any participation of any nature and observe the disclosure requirements of Section 3(j). 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 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 actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §l 3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). ncerely, T Vincent . Dopko Chief Counsel