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