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HomeMy WebLinkAbout98-521 DeSimoneJoan M. DeSimone 230 19th Ave. Homestead, PA 15120 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1998 98 -521 Re: Conflict, Public Official /Employee, Borough, Councilmember, Immediate family, Spouse, Police Officer, Bargaining Agreement, Benefits, Civil Service, Promotion. Dear Ms. DeSimone: This responds to your letter of February 4, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a borough councilmember whose spouse is a police officer in the borough regarding participation in matters involving employee benefits, payroll or civil service promotions. Facts: You reside in Homestead Borough, Allegheny County, PA and are a member of the Homestead Borough Council. Your husband is employed as a Police Officer in Homestead Borough. He is a member of the Union and is entitled to certain benefits under a bargaining agreement, such as medical coverage, eye and dental benefits, and a pension. You inquire as to the following: (a) The benefits mentioned above are brought forth in Council meetings and a "blanket" vote on all bills properly presented is taken. You ask if you may vote or if you must abstain from these votes due to the fact that they affect your husband's benefits. (b) If a motion is made to empower the Civil Service Commission to administer a promotional civil service test to all officers who are eligible, you ask if you may vote on this issue if your husband is eligible to take the civil service test. You assert that your vote would not give your husband or yourself any personal financial gain because he would have to go through the Civil Service procedures. (c) If you may vote on issues involving Police payroll, which is a budget item and part of the Police contract. DeSimone, 98 -512 March 5, 1998 Page 2 (d) If there are any other issues that would affect your voting as a member of the Homestead Borough Council while your husband is employed as a Police Officer in the Borough. 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 Councilmember for Homestead Borough, you are a public official as that term is defined in the Public Official and Employe Ethics Law ( "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. 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. DeSimone, 98 -512 March 5, 1998 Page 3 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. 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. The seminal Commission decision which applies Section 3(a) under facts similar to those which you have submitted is Van Rensler, Opinion No. 90 -017. The issue in Van Rensler was whether the Ethics Law prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were 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. 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 DeSimone, 98 -512 March 5, 1998 Page 4 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 immediate family member is affected exactly as the other members of the subclass. The Commission held that as long as the 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 would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated ". Id., at 4 -5. Thus, a fundamental focus of the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. Having set forth the above principles, the instant matter shall be addressed. In order for the class /subclass exclusion to apply, the immediate family member must be in a class /subclass consisting of more than just one person with the immediate family member being affected to the same degree as the other members of the class /subclass. See, Davis, Opinion No. 89 -012. In this case, as to these prerequisite conditions you have not factually stated as to whether other police officers in the Borough would be affected to some degree as to benefits and civil service status. As to your specific questions, you would not have a conflict in matters involving your spouse as a borough police officer provided there is at least one other police officer in the class who would be affected to the same degree. However, if the action only affects your spouse or affects him differently than the other police officer(s), you would have a conflict and could not participate. To illustrate the above, consider the following examples. If your spouse along with other police officer(s) are given a benefits package which provides the same benefits to all, you would not be prohibited from voting on the bills to pay for the benefit package. As another example, suppose that your spouse was the only police officer that met the eligibility requirements for the civil service testing. In that case, you would have a conflict and could not participate because the action of council would only affect him. As to payroll, if it is a vote to approve borough employees payroll where there are no disputes as to amounts, you would be permitted to vote. However, if there were a question as to your spouse's pay, such as a dispute as to overtime, you would have a conflict and could not participate. Lastly, suppose the borough decided to lay off one police officer for budgetary reasons and the options were between your spouse and one other police officer. In that case, you would have a conflict and could not participate. These examples are illustrative of the application of the class /subclass exclusion to the conflict provision in 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 Councilmember for Homestead Borough, you are a public official subject to the provisions of the Ethics Law. You would not be prohibited from voting or participating in matters involving your spouse as a borough police officer, as a member of your immediate family, provided he would be a member of a class /subclass consisting of more than just that family member and would be affected by the official action to the same degree as the other class /subclass members. The restrictions and DeSimone, 98 -512 March 5, 1998 Page 5 prohibitions set forth above must be followed. 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 fife such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, A:tik r 4.0Dopt6 incent J opko Chief Counsel