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HomeMy WebLinkAbout00-500 MorrowTammy Morrow 2 Rhodes Ave Sewickley, PA 15143 Dear Ms. Morrow: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 4, 2000 Re: Conflict; Public Official /Employee; Township; Commissioner; Public Works Employee; Police; Contract; Immediate Family; Husband; Vote; Private Pecuniary Benefit. This responds to your letter of November 22, 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 et seq., presents any prohibition or restrictions upon a township commissioner as to: 1) remaining in the position of township commissioner when her husband is an employee of the public works department; and 2) voting on township business such as the uniformed police contract when, in the past, the township has given the public works department employees the same percentage of pay increases and benefits as the uniformed police. Facts: You will begin your four -year term as Commissioner of Aleppo Township in January 2000. Your husband is an employee of the Township's Public Works Department. You ask whether you may be a Township Commissioner when your husband is employed by the Township Public Works Department. If you may, you ask what restrictions apply to you. You state that the Township Solicitor has indicated that you will not be able to vote on many areas of Township business such as the uniformed police contract because the Township's practice in the past has been to give the Public Works Department employees the same percentage of pay increases and benefits as the uniformed police. You state that there are five police officers, three public works employees, and one secretary who would be affected by the uniformed police contract. The Solicitor has advised your husband that his job will be terminated to eliminate the conflict of interest. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics ®state.pa.us 00 -500 Morrow, 00 -500 January 4, 2000 Page 2 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Commissioner for Township of Aleppo, you are a public official as that term is defined in the Ethics Act, and hence you are /is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1 103. 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 1 102. 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. "Immediate family." A parent, spouse, child, brother or sister. Morrow, 00 -500 January 4, 2000 Page 3 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 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, Mlakar, 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 prohibited from using the authority of public office /employment or confidential Morrow, 00 -500 January 4, 2000 Page 4 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. Because your husband is in one of the familial relationships delineated above, he is a member of your immediate family. Turning to your question as to whether you may be a Township Commissioner when your husband is an employee of the Public Works Department, you are advised that the Ethics Act would not prohibit you or your husband from remaining in your current positions. However, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your position as a Township Commissioner or confidential information received by holding such a public position for the private pecuniary benefit of yourself, any member of your immediate family, or a business with which you or a member of your immediate family is associated. As stated above, in each instance of a conflict of interest, you would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As for your question of whether you may vote on township business such as the uniformed police contract, the Commission, in Van Rensler, Opinion No. 017, applied Section 1103(a) in addressing an issue similar to the one you now pose. The issue in Van Rensler was whether the Ethics Law would prohibit school directors, whose members of their immediate family were school district employees represented by bargaining units, from participating on a negotiating team and voting on a collective bargaining agreement. The Commission held that the Ethics Law would not restrict the school directors from voting on the finalized agreement, but would preclude their participation in negotiations leading up to the finalized agreement. The Commission explained that the school directors could vote on the finalized agreement because of the exclusion in the definition of "conflict" 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 to the same degree as all the other members of the subclass. The Commission stated that as long as the two prerequisites for applying the exclusion were met, the school directors could vote on the final collective bargaining agreement. Applying Van Rensler to the question of whether you may vote on the uniformed police contract, an initial determination must be made as to whether the class /subclass exclusion applies. In order for that exclusion to apply, your husband must be in a class /subclass consisting of more than one person and be affected to the same degree as the other members of the class /subclass. You state that the uniformed police contract would affect three employees of the Public Works Department. Thus, in a matter coming before the Township that would financially impact your husband and the other Public Works Department employees, such as an increase in their salaries or benefits to the same degree, the class /subclass exception to the definition of conflict of interest would apply, and you would not be precluded from voting on such matter. It must be noted that under Van Rensler, you would not be prohibited from voting on the finalized contract. However, you would be precluded from participating in the negotiations leading up to such finalized agreement or receiving confidential information regarding the same because of the possibility of your influence in the Commissioners' decision as to the direction and outcome of the negotiation process. See, Van Rensler, supra. Morrow, 00 -500 January 4, 2000 Page 5 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 First Class Township Code. Conclusion: As a Commissioner for the Township of Aleppo, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 9. Following your election as a Township Commissioner, the Ethics Act would not preclude you or your husband from remaining in your respective positions with the Township. In matters before the Township that would financially impact your husband, you would have a conflict of interest under Section 1103(a) of the Ethics Act and would have to abstain and observe the disclosure requirements of Section 1103(j). In situations where your action would affect your husband and the other Public Works Department employees to the exact same degree, the class /subclass exclusion to the definition of conflict of interest would apply, and you would be permitted to participate in such matters. In particular, where the class /subclass exclusion would apply, you would be permitted, based on Van Rensler, to vote on the ratification of the uniformed police contract, but would be precluded from participating in the negotiations leading to the finalized contract or receiving confidential information regarding the same. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), 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 ). 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. rely, Vincent . Dopko Chief Counsel