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HomeMy WebLinkAbout94-595 SvirskoAlex L. Svirsko, Jr., Esquire Gvozdich„ Buchan & Svirsko 107 East Lloyd Street P.O. Box 330 Ebensburg, PA 15931 Dear Mr. Svirsko: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1994 94 -595 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Vote, Collective Bargaining, Immediate Family, Brother -in -law, Union Representative. This responds to your letter of July 21, 1994 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 a township supervisor with regard to collective bargaining negotiations with the township employees when his brother -in -law is an employee of the township and will be participating in the collective bargaining negotiations as a union representative. Facts: You seek an advisory from the State Ethics Commission on behalf of a Township Supervisor. The Supervisor was appointed by the remaining Supervisors after his predecessor resigned. The appointed Supervisor's brother -in -law is an employee of the Township. The Township will be entering collective bargaining negotiations with its employees. This Supervisor will be participating as a representative of the Towsship while his brother -in -law will be participating as a representative of the union. You ask whether the appointed Supervisor has a conflict of interest under the Ethics Law. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(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 Svirsko, Alex L., Jr., Esquire, 94 -595 August 22, 1994 Page 2 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. § 6407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Township Supervisor, the person on whose behalf you have inquired is a public official as that term is defined under the Ethics Law, and hence he 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 a business with which he or a member of his iapediate 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. Svirsko, Alex L., Jr., Esquire, 94 -595 August 22, 1994 Page 3 "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 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 been 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 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 Svirsko, Alex L., Jr., Esquire, 94 -595 August 22, 1994 Page 4 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, M akar, Advice 91- 523 -S. 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 this case, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since the Township Supervisor and his brother -in -law are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not restrict the Township Supervisor's prospective official participation as a representative of the Township in collective bargaining negotiations with its employees and specifically with his brother -in -law as a union representative. However, this Advice is conditioned upon the assumption that neither the Township Supervisor nor any mediate 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; Confidential Advice 94 -529. 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 Second Class Township Code. Conclusion: A Township Supervisor is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict a Township Supervisor from participating as a representative of the Township in collective bargaining negotiations with the Township employees when his brother -in -law is a Township employee and will also be participating in the collective bargaining negotiations as a union representative, Svirsko, Alex L., Jr., Esquire, 94 -595 August 22, 1994 Page 5 because the brother -in -law is not a member of that Township Supervisor's "immediate family" as defined under the Ethics Law. This Advice is conditioned upon the assumption that neither the Township Supervisor nor any member of his immediate family, nor any business with which he or a member of his immediate family is associated, as defined by the Ethics Law, would receive a private pecuniary benefit from his proposed conduct. 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 513.2(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 fifteen (15) days may result in the dismissal of the appeal. cerely, Vincent J.''opk Chief Counsel