Loading...
HomeMy WebLinkAbout00-530 AndrewsSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -093 ADVICE OF COUNSEL February 28, 2000 Senator W. Thomas Andrews, Esquire Mansell & Andrews 25 North Mill Street, Suite 403 00 -530 New Castle, PA 16101 -3791 Re: Conflict Public Official /Emplo e e ; ermber; Cit Board Council; Municipal Pension Fund; Vote; Immediate Family Dear Mr. Andrews: This responds tour letter of F 24, 2000 by which you requested advice from the State Ethics Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1 101 et se ., presents any prohibition or restrictions .upon city council members as to mb e r to hen that school board member exercises r authority over the school board member employment of the council members or their spouses who are school board employees. Facts: You are the Solicitor for the City of New Castle Municipal Pension Fund N Pension Fund New Castle City Th Co unc l ("City Council") Municipal Pension shall ccollectively e be the Tru provides ee that for the Nty Pension Fund. City Council ") a a nd St Mark Elisco ("Elisco"). DeBlas o's wife whom are principal and DeBlasio ( "DeBlasio') DeBlasio is an assistant principal in the New Castle Area School System. And its Sales 25% of resen the e, David Domenick ("Domen ck "). Domen c is an Sachs and iales p and Elisco. Neei ther hf t DeBlasio's nor Elisco liss Board which bargaining puonit DeBlasio's wife protected by and Elico. Ni any union contract. You request an advisory s with funds tow whether or Elisco would have a conflict as to voting to invest o o f It the Ethics Act, i651Pa.C.S. § §1107(10) (11), dvsores Sections a a isssued to the 1107(11) of the advisory based upon not engage in an independent investigation of the facts, nor does it speculate as FAX: (717) 787 -0806 • Web Site: www ethics state pans • e -mail: ethics @state.pa.us Andrews, 00 -530 February 28, 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 requester has truthfully disclosed all of the material facts. As Members of the New Castle City Council, DeBlasio and Elisco are public officials as that term is defined in the Ethics Act, and hence 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. "Immediate family." A parent, spouse, child, brother or sister. 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 ee shall solicit or accept anything i accep any g of monetary value value based public upon public official /employ judgment of the public the understanding that the vote, official action, or judg rovisions officil /employee would be ( there has been Reference is e transgression sion thereof but of the e law not to imply merely to provide a complete response to the question presented. Andrews, 00 -530 February 28, 2000 Page 3 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 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 ou ting and, prior to the vote being taken, publicly 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 re a i ote two n members of the governing body have cast opposing 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 s l/e both orally y and d by filing and writttenlimemorandum to that effect with reasons disclose the abstention and s the person same h orall afiling recording the minutes or supervisor. of the In the event that the o required because a abstention majorty results is unattainable due to the governmental body to take a ctin abstention(s) from conflict under ted above Ethics re followed. See, Mlakare Advice 91-523 -S. the disclosure requirements noted applying the above provisions of the Ethics Act to the instant matter, pur suant hibite to d from using 1103(a) Ethics of public o public a /employm official/public or confidential prohibiteom using the authority benefit information received by holding him elf, any of his immediate pecuniary of the public official /public family, or a business with which he or a member of his immediate family is associated. ouse, child, Since the term "immediate family" is wife e is cofdthe f am lial brother or sister and since DeBlasi o delineated above, Section 1103(a) of the Ethics Act would prohibit DeBlasio from participating in actions of City Council that would result in a financial benefit to his Andrews, 00 -530 February 28, 2000 Page 4 wife. Section 1 103(a) of the Ethics Act would also prohibit Elisco from participating in actions of City Council that would result in a financial benefit to himself. Having established the above principles, your question shall now be addressed. DeBlasio and Elisco would have a conflict of interest with regard to voting to invest funds through Domenick because Domenick, as a School Board Member, would determine whether DeBlasio's wife or Elisco would serve in their respective positions with the New Castle Area School System. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion No. 86 -007 -R and Woodrinq, Opinion No. 90 -001. In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia, that a County Commissioner (Edward Paluso) could not enter into a lease with a municipal authority, where one of the members of the authority (Norman Carson) was a county employee directly responsible to the commissioners of the county, unless the execution of the lease was accomplished after an open and public process, with the authority member abstaining from participating in the review and award of said 'lease, and the county commissioner abstaining from participating in any matter relating to the authority member in his position as a county employee. The Commission stated, inter alia: ... we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates to a financial interest which he may have. See, Welz, 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. See, Bassi, 86 -007 at 3. The Commission further stated: Mr. Paluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Paluso a lease which results in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. Id. at 4. In Woodrinq, Opinion No. 90 -001, the State Ethics Commission reviewed a similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority, had applied to the City for a rehabilitation grant through the Federal Rental Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed as the Executive Director of the Redevelopment Authority (chaired by Woodring) also served as the Andrews, 00 -530 February 28, 2000 Page 5 Community Development Coordinator for Sunbury. In the latter capacity, Pick was administrator in charge of the , Program for eCity. P Pic k r f un ct i 'ns i ncluded Program, administering the Program, reviewing all applications, Commission stated: we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development Coordinator for the city. In particular, the potential exists, given the employer - employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable Tight than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi, Opinion 86- 007. In addition, Section 3(j) of the Ethics Law would require you to publicly note that you would have a conflict as to any matter involving Mr. Pick. In addition, you must file a written memorandum to that effect with the person responsible for recording the minutes. Woodrinq, Opinion No. 90 -001 at 6. The facts which you have submitted reflect that as Members of City Council, DeBlaso and Eli er the Pens on Fund authority should be invested through regarding the and its particuar, whether Sales Representative, Domenick. In turn, Domenick as a School Board Member the e employment influen f DeBlas o's a and School and Elisco. If DeBlasio and Elisco would vote to the empl o approve the investment of funds through Domenick, Domenick would receive a financial benefit. Parenthetically, the fact that the employment involves Elisco individually but DeBlasio as to his spouse does not distinguish this case from the above State Ethics Commission y Council l M m DeBlasio and Elisco would ha e a Bassi t of interest sur interest as City Co pursuant to Section 1103(a) of the Ethics Act with regard to voting to invest funds through Domenick. In each instance of a conflict of interst, DeBlasio and Elisco would be required to abstain from participation and set to fully baci f y the disclosure requirements of Section 1 103(j) of the Ethics Act as forth 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 do not of in conduct other tion of the c Ethics Act. Specifically not addressed herein is the involve an interpretation applicability of the respective municipal code. Conclusion: As Memberi fo are the e s Richard he provisions ( "DeBlasio ") and Mark Elisco ("Elisco") of E ) public officials subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. DeBlasio's wife is a o would have a conflict e of interest lwith As regard to Council voting to invest DeBlasio and Elisco h funds through Gold a Member of the New Castle Area School Boarrd. ("Domenick"), o and Domenick "), who is over Pension Fund m sco woulc have a conflict the Pension Fund I should be invested through Domenick matters, including whether Andrews, 00 -530 February 28, 2000 Page 6 who would receive commissions /fees through the sale of funds. Domenick as a School Director, in turn, would exercise authority over the employment of DeBlasio's spouse and Eliisco. _ In each instance of a conflict of interest, DeBlasio and Elisco would be required to abstain and observe the disclosure requirements of Section 1 103(j) of 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 lathother i facts and committed he acts complained truthfully a 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. ncerely, Vincent `J -bopko Chief Counsel