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HomeMy WebLinkAbout99-598 BeersSherry L. Beers 217 Wilson Ave. DuBois, PA 15801 Dear Ms. Beers: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 7, 1999 Re: Conflict; Public Official /Employee; Township Supervisor; Use of Authority of Office or Confidential Information; Immediate Family; Police Chief. This responds to your letter of August 4, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt seq., presents any prohibition or restrictions upon a Township Supervisor with regard to matters involving the Township Police Department where the Supervisor's spouse is the Township's Police Chief. Facts: As a Township Supervisor for Sandy Township, Pennsylvania, you seek an advisory from the State Ethics Commission as to any restrictions that would be imposed upon you by the Ethics Act in matters involving the Township's Police Department. The Sandy Township Board of Supervisors is a five - Member Board. You state that three of the Board Members are trying to keep you out of the decision making in matters involving the Police Department. Your spouse is the Township's Police Chief and has been such for the past 29 years. You state that during one meeting, you were told that you had not been given a certain page of the agenda. The Chairman stated that it included matters concerning the new contract which the Township has been in the process of negotiating with the Police Department, and that you did not have a right to be a part of the negotiation process. While it is your understanding that you may not make a motion or vote on anything that would provide a monetary gain to your husband or yourself, you ask whether you have the right to sit in on any of the sessions or voice your opinion as to the new contract. It is your view that you are entitled to be a part of this process. You further state that the Township Manager and three Board Members have raised a concern about your involvement in proposed changes to the Police Department. You state your view that as a Supervisor, you have a responsibility to the taxpayers of Sandy Township to govern all aspects concerning the Township. FAX: (717) 787 -0806 ® Web Site: www.ethics.state.pa.us • e -mail: ethics ©state.pa.us 99 -598 Beers, 99 -598 September 7, 1999 Page 2 The remainder of your letter of inquiry addresses other areas where differences have arisen between you and the Township Manager or other Township Supervisors, but which, on their face, do not appear to involve any potential pecuniary benefit to you or your spouse. You request an advice as to whether you would have any conflicts under the Ethics Act as to the issues delineated above. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Sandy Township, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103 (a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term 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. Beers, 99 -598 September 7, 1999 Page 3 65 Pa.C.S. §1102. "Immediate family." A parent, spouse, child, brother or sister. It is noted that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. Section 1 103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities: (j) Voting conflict. - -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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Miakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1 103(a) of the Ethics Act, a public official /public employee is Beers, 99 -598 September 7, 1999 Page 4 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. In this case, it is clear that the Township Police Chief, as your husband, is a member of your "immediate family ". 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 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 ". . �, 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. Mattie, Advice No. 91 -508, applied the Van Rensler principles to a situation where collective bargaining was taking place coincidentally with budget preparations. Per the submitted facts, some of the budgetary information which was to be provided to the school directors would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. Furthermore, information was to be provided by the negotiating team to the administration which information would be used by the administration in preparing financial figures for the proposed budget. The Advice concluded that a school director with such a conflict could receive general financial information for the proposed budget which information did not impact upon the negotiation process with the bargaining unit. However, such a school director could not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries, or specific information from which one could deduce such line -by -line items. The school director could not receive information regarding the background of negotiations or the analysis of negotiations at any time. However, the School Director could have access to information once it became public. 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 Beers, 99 -598 September 7, 1999 Page 5 class /subclass. See, Davis, Opinion No. 89 -012. In this case, since your husband is the Township Police Chief, it would appear that there would be no others who would be similarly situated. Thus, in matters before the Township which would financially impact your husband as Police Chief, the class /subclass exception to the definition of conflict of interest would not apply, and you, as a public official, would have a conflict of interest. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1 103(j) as set forth above. You would specifically be prohibited from participating or voting on a collective bargaining agreement where your husband as Police Chief for the Township would be covered by the contract. You would also be prohibited from participating in negotiations or receiving confidential information regarding the contract or related confidential information regarding the budget. You could receive such information when it would no longer be confidential and would be available to the public. However, not every matter involving the Township Police Department would necessarily present a conflict of interest for you. Township Police Department matters which would not involve the prospect of a prohibited private pecuniary benefit would not constitute a conflict of interest for you under the Ethics Act. This Advice is limited to addressing the applicability of Section 1 103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a. Supervisor for Sandy Township, Pennsylvania, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt sag. In matters before the Township which would financially impact your husband as Police Chief, the class /subclass exception to the definition of conflict of interest would not apply, and you, as a public official, would have a conflict of interest. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. You would specifically be prohibited from participating or voting on a collective bargaining agreement where your husband as Police Chief for the Township would be covered by the contract. You would also be prohibited from participating in negotiations or receiving confidential information regarding the contract or related confidential information regarding the budget. You could receive such information when it would no longer be confidential and would be available to the public. The restrictions and prohibitions set forth above must be followed. Township Police Department matters which would not involve the prospect of a prohibited private pecuniary benefit would not constitute a conflict of Beers, 99 -598 September 7, 1999 Page 6 interest for you under the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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 J. 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, incent J:'Dopko Chief Counsel