HomeMy WebLinkAbout00-506 GriestDouglas E. Griest
Borough of Oxford
P.O. Box 380
401 Market Street
Oxford, PA 19363 -0380
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 20, 2000
00 -506
Re: Conflict; Public Official /Employee; Councilman; Borough; Fraternal Order of Police;
Contract; Negotiations.
Dear Mr. Griest:
This responds to your letter of December 15, 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 seq., presents any prohibition or restrictions upon a borough councilman as to
participating in contract negotiations between the borough and the borough police
association /Fraternal Order of Police, where the councilman is a member of the Fraternal
Order of Police.
Facts: You are a Councilman for the Borough of Oxford (Borough) and a member
of the Police and Public Safety Commission. You are also a former Pennsylvania State
Police Officer, having retired in 1992. You have been a member of the Fraternal Order
of Police (FOP) for approximately 27 years during which time you have held several
offices in the organization and have been involved at the local, state and national levels.
You have not held any office or been actively involved in the FOP since approximately
1992 although you have, on occasion, attended a local meeting.
You have been selected as lead negotiator in contract talks between the Borough
and the Oxford Police Association (OPA) which falls under the umbrella of the FOP. You
ask for an advisory regarding the propriety of your participation in contract negotiations
under the Ethics Act given the fact that you are a member of the FOP.
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 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.
As a Councilman for the Borough of Oxford, 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.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Griest, 00 -506
January 20, 2000
Page 2
Section 1 103(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.
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 1103(j) of the Ethics Act provides as follows:
Section 1103. 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
Griest, 00 -506
January 20, 2000
Page 3
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 1103(a) of the Ethics Act, 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.
Generally speaking, Section 1 103(a) would restrict you from voting on matters
coming before Borough Council that would result in a financial gain to you, in which
case, you would be required to abstain and observe the disclosure requirements of
Section 1 103(j) of the Ethics Act set forth above. This would be true unless you would
fall within the exclusion to the statutory definition of "conflict of interest" known as the
class /subclass exclusion. In order for that exclusion to apply, you would have to be in
a class /subclass consisting of more than just one person and would have to be affected
to the same degree as the other members of the class /subclass. For example, the
Commission in Van Rensler, Opinion No. 90 -017, applied the class /subclass exclusion
in determining that a school director could vote on the final ratification of a collective
bargaining agreement with the teachers even though his spouse was a teacher because
his spouse would receive the same benefits as all other teachers under the contract.
Based on the limited facts which you have submitted, it does not appear that the
Ethics Act would prohibit you from participating in negotiations or voting on the police
contract, provided that you would not use the authority of your office or any confidental
information received through your holding public office for a private pecuniary benefit for
yourself, a member of your immediate family, or a business with which you or a member
of your immediate family is associated. Thus, it is assumed that as a retired police
Griest, 00 -506
January 20, 2000
Page 4
officer, you would not receive any financial benefit under the police contract, as for
example, an increase in pension benefits. Absent any private pecuniary benefit, you
would not be precluded from participating as to the police contract negotiations or voting
on the police contract under Section 1103(a) of the Ethics Act.
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.
Conclusion: As a Councilman for the Borough of Oxford, you are a public official subject
to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §11 et seg. Based on the limited facts which you have submitted, Section
1103(a) of the Ethics Act would not preclude you from participating as to the police
contract negotiations or voting on the police contract, provided that you would not use
the authority of your office or any confidental information received through your holding
public office for a private pecuniary benefit for yourself, a member of your immediate
family, or a business with which you or a member of your immediate family is
associated. 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 ). 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.
erely,
incent J. Dopko
Chief Counsel