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HomeMy WebLinkAbout96-513 MunleyJanice Munley 388 Academy Street Archbald, PA 18403 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 9, 1996 96 -513 Re: Conflict, Public Official /Employee, Borough, Councilmember, Borough Police, Husband and Brother. Dear Ms. Munley: This responds to your letter of January 23, 1996 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 Borough Councilmember regarding participation in matters involving the Borough Police when the Councilmember's husband and brother are Borough Police Officers. Facts: You were recently elected to the Archbald Borough Council, being sworn into office on January 2, 1996. Following the January 17, 1996 Council meeting and executive session, you were advised by the Borough Solicitor that you should not attend any executive sessions where business regarding the Borough Police Department would be discussed because your husband and brother are employed as Police Officers Although the Solicitor stated that they would feel uneasy discussing police matters in your presence, you believe that as an elected official you have the right to attend these meetings and are requesting advice on this issue. 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 Munley, 96 -513 February 9, 1996 Page 2 facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a member of the Archbald Borough Council, you are a public official as that term is defined under the Ethics Law, and hence 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 of 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 unley, 96 -513 February 9, 1996 Page 3 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 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. Munley, 96 -513 February 9, 1996 Page 4 It is clear in this case that under the Ethics Law, your husband and brother are members of your "immediate family ". The seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler, Opinion 90 -017. The issue in Van' Rensler was whether the Ethics Law prohibited school board directors from participating on a negotiating team and voting on a collective bargaining agreement when members of their immediate families were school district employees represented by the bargaining units. The Commission concluded that the Ethics Law would not restrict the school directors from voting on the finalized agreement, but that the school directors could not take part in the negotiations leading to the finalized agreement. In reaching this conclusion, the Commission held that the school directors could vote on the finalized agreement because of the exclusion in the definition of "conflict or conflict of interest" which applies if the immediate family member is a member of a subclass consisting of an industry, occupation or other group containing more than one member and the family member would be affected exactly as the other members of the subclass. The Commission held that if these two prerequisites for applying the exclusion were met, the school directors could vote on the final collective bargaining agreement. However, the Commission held that the Ethics Law precluded the participation of the school directors in the negotiation process. Citing prior opinions under former Act 170 of 1978, the Commission recognized that the underlying reasoning of those prior opinions was to insure that public officials are impartial and that their private interests are sufficiently separated from their responsibility to the public. Van Rensler, at 4. The Commission cited the definition of "conflict of interest" in Act 9 of 1989 as specifically prohibiting a public official or employee from using confidential information relating to the family members' bargaining units. The risk of disclosure of that information was held to preclude the school board directors from participating in negotiations where family members are part of the bargaining unit. In so holding, the negotiation process would be free of any influence of such a school board director and the potential for the use of confidential information would be "minimized if not eliminated ". Id, at 4 -5. Thus, a fundamental basis for the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school board director to defeat the bargaining process. In applying Section 3(a) to the questions you pose, in general the Ethics law would not prohibit you from attending executive sessions where police matters would be discussed. However, as noted in Van Rensler, supra, you could not be present if confidential salary negotiations involving the Borough police were discussed. Of course, you could vote on the final ratification of a salary contract provided the criteria in Van Rensler are Manley, 96 -513 February 9, 1996 Page 5 satisfied. As to matters involving confidential information or a private pecuniary benefit that is individual to either your husband or brother, such as promotion, discipline or lay -off, you should absent yourself from the executive session and must abstain in any public meeting so that you would not participate or vote on such matters and must observe the requirements of Section 3(j) of the Ethics Law noted above. Thus, under Section 3(a) of the Ethics Law, matters involving the subclass of the occupational group of borough policemen which affect the members of that subclass to the same degree are not conflicts; matters involving your husband /brother individually which would result in a private pecuniary benefit to either of them would be conflicts requiring abstention and the observance of the Section 3(j) disclosure requirements. 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 a member of the Archbald Borough Council, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law in general would not prohibit you from attending executive sessions or participating in matters concerning the Borough police where your husband and brother are police officers subject to certain areas of exception 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 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. Munley, 96 -513 February 9, 1996 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(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 thirty (30) days may result in the dismissal of the appeal. i cerely, Vincent ' . Dopko Chief Counsel