Loading...
HomeMy WebLinkAbout00-519 LearyWilliam G. Leary, Jr. 204 West Crawford Street Ebensburg, PA 15931 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 15, 2000 Re: Conflict; Public Official /Employee; Member; President; Vice - President; Borough; Council; Immediate Family Member; Father; Roadcrew; Contract Negotiations; Vote. Dear Mr. Leary: This responds to your letter of January 11, 2000 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 member of borough council as to serving on council when his father is a borough employee and voting on contract negotiations when his father is a member of the union covered by the contract. Facts: You are a Member of the Council for Ebensburg Borough ( "Borough "). Your father is part of the Borough's road crew. Your father was a Borough employee before you ran for a seat on Council. While you do not believe that you would have a conflict in serving on Borough Council when your father is a Borough employee, you ask for an advisory because the issue has been raised by another Council Member. As a Council Member, you ask to what extent you may become involved in contract negotiations and other matters related to your father's union. You have been told that you may not participate in anything related to your father. The Borough Council recently held its reorganization meeting. You were interested in running for the office of Vice - President of Borough Council. The same Council Member referred to above told the other Members that you were ineligible to hold any office because your father works for the Borough. You ask whether you would be eligible to hold the office of Vice - Pre or President of Borough Council when your father is a Borough employee. 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 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state_pa.us 00 -519 Leary, 00 -519 February 15, 2000 Page 2 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 Member of Council for the Borough of Ebensburg, 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. 65 Pa.C.S. §1102. "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. 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 Leary, 00 -519 February 15, 2000 Page 3 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 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 1 103(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 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 father is in one of the familial relationships delineated above, he is a member of your immediate family. Leary, 00 -519 February 15, 2000 Page 4 Turning to your question as to whether you may be a Borough Council Member when your father is a Borough employee, you are advised that the Ethics Act would not prohibit you from remaining in your current position. However, Section 1 103(a) of the Ethics Act would prohibit you from using the authority of your position as a Member of Borough Council or confidential information for the private pecuniary benefit of yourself, a 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 1 103(j) of the Ethics Act. With regard to your question as to whether you may serve as Vice - President or President of Borough Council, the Ethics Act would not prohibit you from so doing. However, in Tight of the prohibitions set forth in Section 1103(a), you could not vote to appoint yourself to those positions if they were compensated positions. In Snyder v. State Ethics Commission, 68 A.2d 843 (Pa. Commw. Ct. 1996), the Commonwealth Court affirmed an Order of the State Ethics Commission which found that a township supervisor violated Section 3(a) of the Ethics Law by discussing and voting on issues in which he had a private pecuniary interest. Similarly, you would have a financial interest in being appointed to the compensated positions of Vice - President or President. Because you would financially benefit by being appointed Vice - President or President, you would have a conflict of interest in such matter and would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. With regard to your question as to whether may participate in contract negotiations and other matters dealing with your father's union, the Commission, in Van Rensler, Opinion 90 -017, applied Section 3(a) of the Ethics Law 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 unit. 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 your question, an initial determination must be made as to whether the class /subclass exclusion applies. In order for that exclusion to apply, your father 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. Assuming there are other individuals besides your father who are members of the road crew, in a matter coming before Borough Council that would financially impact your father and the other road crew members, 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 Leary, 00 -519 February 15, 2000 Page 5 the same because of the possibility of your influence in the Council Members' decision as to the direction and outcome of the negotiation process. See, Van Rensler, supra. 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 respective municipal code. Conclusion: As a Member of Council for the Borough of Ebensburg, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 seg. The Ethics Act would not preclude you from remaining in your position as a Member of Borough Council. However, you would have a conflict of interest in matters before Borough Council that would financially benefit your father. In such instances, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Assuming there are other road crew members besides your father, in situations where your official action would affect your father and the other road crew members to the 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 union 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 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 1. 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, okh Vincent J.'Dopko Chief Counsel