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HomeMy WebLinkAbout97-591 BilottaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 11, 1997 James R. Bilotta 416 Garibaldi Avenue 97 -591 Roseto, PA 18013 Re: Conflict, Public Official /Employee, Immediate Family, Borough Council Member, Son, Police Officer Position. Dear Mr. Bilotta: This responds to your letter of June 10, 1997, by which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Borough Council Member with regard to hiring a Borough Police Officer where his son is one of the two candidates for the position. Facts: As a Member of the Roseto Borough Council, you request an advisory from the State Ethics Commission. There is currently a full -time police officer position available in the Borough of Roseto. Your son is one of two candidates for that position. You state that your son is an adult and is no longer a dependent. When this matter was first voted upon in May, 1997, you recused yourself from voting because of your concern about the perception of a conflict of interest. Because of your non - participation, Council's vote was deadlocked 3 to 3 and neither candidate was able to obtain a majority. The position has still not been filled and it is expected that this matter will be up for a vote again at Council's July meeting. You request an advisory as to whether your voting on this matter would be a conflict of interest under the Ethics Law and you further ask whether you would be permitted to vote to break a deadlock of Council pursuant to Section 3(j) of the Ethics Law. 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 Bilotta, 97 -591 July 11, 1997 Page 2 material facts relevant to the inquiry. 65 P.S. §§407(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of Council for the Borough of Roseto, you are a public official as that term is defined under the Ethics Law, and hence you 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. 65 P.S. §403(a). The following terms that pertain to Section 3(a) are defined in the Ethics Law as follows: 65 P.S. §402. 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. Section 3(f) of the Ethics Law provides as follows: Bilotta, 97 -591 July 11, 1997 Page 3 Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. §403(f). Section 3(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Bilotta, 97 -591 July 11, 1997 Page 4 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. In each instance of a conflict, 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 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Your son is in one of the familial relationships delineated above and therefore he is a member of your immediate family. The statutory definition does not provide any exceptions based upon the age or non - dependency of the child. Section 3(a) of the Ethics Law would therefore prohibit you from participating in the hiring of the Borough police officer. Davis, Opinion 89 -012. If, for example, you were to vote to hire your son, such action would be a conflict of interest in contravention of the Ethics Law because you would be using the authority of office for the private pecuniary benefit of your son. In each such instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) set forth above. Furthermore, under the facts which you have submitted, you would not be permitted to vote to break the deadlock of the remaining six Members of Borough Council. The exceptions set forth in Section 3(j) permit a public official /public employee who otherwise has a conflict of interest to participate where he is either a Bilotta, 97 -591 July 11, 1997 Page 5 member of a three - member board which has deadlocked following his abstention and disclosure, or he is a member of a board (of any size) which has so many members with conflicts under the Ethics Law that there are not enough members left to take official action in the given matter. Neither exception applies in this case. You are not a member of a three - member board, and therefore you may not vote to break a deadlock. Furthermore, it would appear that you are the only member of the Borough Council who has a conflict as to the hiring of the Borough police officer, such that six of the seven Members remain capable of acting. The fact that those other Members deadlock does not render a majority vote unattainable. Likewise, you would have a conflict under Section 3(a) of Act 9 of 1989 as to voting against the only other candidate for the position of police officer because in so doing, through a negative vote, you could insure the hiring of your own son. Pepper, Opinion No. 87 -008. As for Section 3(f), the restrictions as set forth above would apply under the facts which you have submitted, because the contract between your son and the Borough would presumably be valued at $500 or more. Consequently, the restrictions of Section 3(f) as set forth above would have to be observed under the facts as you have presented them. Lastly, 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. Conclusion: As a Member of Counc for the Borough of Roseto, you are a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you would have a conflict of interest and would be prohibited from participating as to the Borough's hiring of a police officer where your son is one of the two candidates for the position. In each such instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) set forth above. The restrictions of Section 3(f) noted above must be observed. 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 Bilotta, 97 -591 July 11, 1997 Page 6 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. opko Chief Counsel