HomeMy WebLinkAbout96-578 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 6, 1996
96 -578
Re: Conflict, Public Official /Employee, City of A, City Council Member, Director of
B School District, City Employee, Hiring Council Member.
This responds to your letter of July 3, 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 School District Director who is a City employee from
voting to hire a Council Member to the position of Director of Elementary and
Secondary Education.
Facts: You are the Director of the B School District and an employee of the City
of A in a position which is subordinate to the City Manager.
One of the City Council Members has applied for the position of Director of
Elementary and Secondary Education or Federal Programs Director. You reference two
prior Commission Advices which deal with City Council Members applying for positions
with the School District.
You state that the City of A is a Home Rule Charter city with a managerial form
of government in that the City Manager is responsible for running the City. The City
Manager controls all personnel matters including hiring, firing and disciplining
employees. The City Council has no control over personnel matters, being responsible
for budgetary and policy making matters. You have submitted a copy of the City
Manager's duties and responsibilities as set forth in a portion of the Charter which is
incorporated herein by reference. Although your position is subordinate to the City
Manager who can hire, fire or discipline you, there is no superior subordinate relations
that exist between city employees and council members except for the position of
Clerk of Council.
You state that Council could cut the budget whereby employees such as
yourself could be laid off due to funding. You note that seniority governs all lay -offs
in the City and you would be treated as any other city employee.
Confidential Advice of Counsel, 96 -578
August 6, 1996
Page 2
You are requesting an advisory as to any potential conflict of interest that may
arise as to your voting on the possible hiring of a City Council Member.
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. §§407(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As Director of the B School District, you are a public employee 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.
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
Confidential Advice of Counsel, 96 -578
August 6, 1996
Page 3
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.
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.
In applying Section 3(a) of Act 9 of 1989 to the instant matter, the general rule
is that a conflict exists where a public official /employee would participate in a matter
involving an individual who in another capacity is a superior to the public
official /employee. Woodrinq, Opinion 90 -001. The conflict arises because the public
official /employee, being a subordinate to the individual in the other capacity, would
feel compelled to act favorably to that individual who would have a matter pending
before the governmental body. In this case, based upon the express factual
assumption that a superior /subordinate relationship does not exist at the City level
between you and the Council Member and based upon the further factual assumption
Confidential Advice of Counsel, 96 -578
August 6, 1996
Page 4
that the city Council Member could not take action to your financial
advantage /detriment other than budgetary matters which would affect class(es) of
employees, you would not have a conflict in voting as a School District Director to hire
the Council Member as an employee of the School District.
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 respective municipal code.
Conclusion: As Director of the B School District, you are a public official subject
to the provisions of the Ethics Law. Based upon the factual assumptions and
conditions noted above, a School Director would not have a conflict in participating in
the process to hire a City Council Member to a position of employment with the School
District where the School Director is an employee of the City who is under the control
of the City Manager but not the Council Member. 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.
This letter is a public record and will be made available as such.
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 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.
incerely,
Vincent ' Dop o
Chief Counsel