HomeMy WebLinkAbout97-510 BloomF. Walter Bloom, III, Esquire
City Solicitor
City of Oil City
207 Seneca Street
PO Box B
Oil City, PA 16301
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 24, 1997
97 -510
Re: Conflict, Public Official /Employee, City, Council Member, Accountant, Contract
with Union for Accounting Services, Vote, City Budget.
Dear Mr. Bloom:
This responds to your letters of December 19 and December 24, 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 City Council Member who performs accounting work
for a union as to a vote on the City budget which establishes salaries and benefits for
union members.
Facts: As Solicitor for the City of Oil City, you request an advisory on behalf of
City Council Member Richard Baker (Baker).
The City of Oil City is a city of the third class which operates under the
Council /Manager form of the Optional Charter Law.
Baker is an elected Council Member and a self - employed accountant by
profession. Baker recently entered into a contract with the IBEW Local 2279, a non-
profit corporation, to perform accounting services including reconciliation of monthly
bank statements, posting monthly financial activity, and preparing the Federal Income
Tax Return. Baker does not perform any financial planning nor make any policy
decisions for the Local IBEW. Baker essentially carries out administration accounting
work. The IBEW Local 2279 is the duly certified bargaining unit for 48 non public
safety employees of the City.
An issue has arisen as to whether Baker's contract with the Local IBEW unit
constitutes a conflict of interest with respect to any of his duties as a Council
Member. You have advised Baker that he may not participate as a Council Member
Bloom /Baker, 97 -510
January 24, 1997
Page 2
in the negotiation of the IBEW contract nor should he vote on the adoption of the
proposed contract between the City and the Union covering the terms and conditions
of employment of such employees. Another issue is whether Baker has a conflict as
to voting upon the general budget of the City which does not have any line items
pertaining to the IBEW corporate entity but does, however, establish salaries, fringe
benefits, and duties of the IBEW's members as defined by the bargaining contract as
to which Baker did not participate. You have advised Baker that in your opinion he
would not have a conflict to vote on the budget; however, Baker has directed you to
obtain an advisory from the State Ethics Commission.
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 a Council Member for the City of Oil City, Richard Baker (Baker) 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 immediate family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary
Bloom /Baker, 97 -510
January 24, 1997
Page 3
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
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.
Bloom /aaker, 97 -510
January 24, 1997
Page 4
In applying Section 3(a) of the Ethics Law to the instant matter, it is noted that
the Commission in Woodrinq, Opinion 90 -001, held that where a public official /public
employee who in a public position is in a superior position to a subordinate and the
subordinate in another capacity is in the superior position, a conflict would exist:
... you may apply for and participate in the benefits associated with the
Program. However, we are concerned that Mr. Pick, who is an employee
of the Redevelopment Authority of which you are Chairman, has the duty
of reviewing all applications and determining eligibility in his capacity as
Community Development coordinator for the city. In particular, the
potential exists, given the employer - employee relationship between the
Redevelopment Authority and Mr. Pick, that your application might be
reviewed in a more favorable light than other applications. To forestall
such a situation, you must not participate or take any action as to Mr.
Pick if your application is approved and you receive benefits. Bassi,
Opinion 86 -007.
Woodrinq, at 6.
Similarly, in this case, Baker is a public official in a superior position to the
subordinate city employees represented by the !BEW Local 2279 but in a private
capacity the latter entity employs Baker to perform accounting services. Thus, Baker
would have a conflict as to matters affecting the city employees represented by IBEW
Local 2279, as noted in your letter. Regarding the propriety of Baker voting on the
general budget, Baker would not be precluded from voting on the budget provided that
such action on his part could not result in any pecuniary benefit (aside from what is
provided in the negotiated bargaining contract as to which he did not participate) to
the city employees. It is also assumed that there are no inappropriate understandings
in contradiction to Sections 3(b) and 3(c) of the Ethics Law.
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 a Council Member for the City of Oil City, Richard Baker (Baker)
is a public official subject to the provisions of the Ethics Law. Based upon the
qualifications and limitations noted above, a city council member, who performs
accounting services for a union whose membership is city employees, may vote on the
general budget which includes salaries and benefits for city employees as per a
bargaining contract as to which the councilmember did not participate. 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.
Bloom /Baker, 97 -510
January 24, 1997
Page 5
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.
�cerely,
Vincent J. Dopko
Chief Counsel