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
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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
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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