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HomeMy WebLinkAbout00-539 MlakarSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -09 ADVICE OF COUNSEL March 13, 2000 Leslie J. Mlakar, Esquire Loughran, Mlakar & Bilik 126 South Pennsylvania Avenue 00 -539 Greensburg, PA 15601 Re: Conflict; Public Official/Employee; Family Member; Father; ote Subd v on Plan. Which Associated; Immediate Dear Mr. Mlakar: This responds to your letter of February 7, 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 et seq., presents any prohibition or restrictions upon a township supervisor as his f at he r /e l o y father/employer; and (2) continuing his employment with his father supervisors by his atr /emp , while he serves as township supervisor. You are the attorney for Robert T. Regola ( "Regola "), a Supervisor in Hempfi five-me The body. dship. T �a was elec elected to the the 1999 general election and five - mer b Rego took office in January 2000. From a time prior to Rego la 's election up to the present, he has been employed by his father. The Township has enacted a Subdivision and Land Development a prepared an which requires the submission of lot plans for Board appro before o was eledte submitted lot plans and surveys to the Board for app d. Now that Regola has been elected Rego la will continue to employed by his Pather ther will submit the lans subdivisions to the Board, an d Re 9 he is You hav E ics Ad Rego la u have advised Regola that, as a public Supervisor, o official, subje to the Ethics th he would e Board. I n a n addition, in dition, you have i plan nformed Regola that whenever a plan of Tots or th. Idition, Rego la wo would wld b be prepared to abs his tain in to observe the d to the isclosure a requirements of Section 1103berq five 1 103(j) of , Ec would be permitted to vote to break the tie. You base your five -member Board, Rego la conclusion upon Section 1103(j) of the Ethics Act which refers to voting to break a tie on a three - member board. FAX: (717) 787 -0806 • Web Site: www.ethics.statea _ • e -mail: ethics @state.pa.us Regola, 00 -539 March 13, 2000 Page 2 You seek an advisory as to the following questions. 1. May Regola vote to approve or disapprove a subdivision plan submitted by his father? 2. If Regola abstains from voting on a plan or subdivision submitted by his father, and the remaining Board members cast opposing votes resulting in a deadlock, may Regola vote to break the tie if proper disclosures are made? 3. May Regola continue to be employed by his father and perform survey and drafting tasks with respect to plans or subdivisions to be submitted to the Board for approval? 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 Supervisor for Hempfield Township, Regola is a public official as that term is defined in the Ethics Act, and hence he is 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. Regola, 00 -539 March 13, 2000 Page 3 "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall e offer e a e shall public solicit official/employee anyth anything of monetary value value based upon pon public official /employeh the understanding /empl yee that the nfluenced the or judgment thereby. Referenceismade to these l official /employee would be 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 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, eggola, 00 -539 March 13, 2000 Page 4 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 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 Regola's father is in one of the familial relationships delineated above, he is Rego la Rego la's business with which he and s the fatheryare business which employs Re 9 associated. As for your first question, you are advised as follows. Pursuant to Section of his 1 office o r confidential information the Ethics Act, � for the private a pecuniary benefit f the himself, his father office o s or the u bdi surveying vision submitted to �thehBoa dRego la y his father. not In such an instance n tance of a conflict, t, sbdiitt Regola would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to your second question as to whether Regola would be permitted to Board, Mlakar ca the tie -breaking that only b when the governmental nt l body e is unable r suto take official pra, makes it cte action because the majority or other legally required vote is unattainable due tot the number of members required to abstain, made such T hust a in nin the case members of al be five- membe to vote if proper disclosures are in order to three p to make the ma orit officials or other legally required vote unattainable. fact that in order ) Y nt basis under one two members hese membe s t conflict ote since would majority a or therl gaily required Section 11030) othetical you vote could still be attainable despite their abstention. Hence, in the hyp pose, Regola would not be permitted n under Section 1 103(j) to cast the tie - breaking vote given a 2 -2 deadlock on As for your third question, Section 1103(a) of the Ethics Act does not prohibit e t o l oweve the public official/public nemployee business use the uthority of his mplo hove P of public position — or confidential information — for the advancement of his own Regola, 00 -539 March 13, 2000 Page 5 private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited ed in under S of 103( a ) wou include: (1) the pursuit of a private business opportunity action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Frei d, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. As stated above, if the private employer or a business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requriements of Section 1103(j). 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 Supervisor for Hempfield Township, Regola is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Regola's father is a member of his immediate famiy. Further, the surveying business which employs Regola is a business with which he and his father are associated. Pursuant to Section 1 103(a) of the Ethics Act, Regola would be prohibited from using the authority of his office or confidential information for the private pecuniary benefit of himself, his father, or the surveying business which employs him. Thus, Regola would not be permitted to vote on a plan or subdivision submitted to the Board by his father. In such an instance of a conflict, Regola would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. If a voting deadlock would occur on the five - member Board, three public officials would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote unattainable. Hence, Regola would not be permitted to cast the tie - breaking vote to break a 2 -2 deadlock on a five - member board. Section 1103(a) of the Ethics Act would not prohibit Regola from continuing his employment with his father in the surveying business; however, Regola would not be permitted to use the authority of his public position — or confidential information — for business a a. Lastly, thef P his ow r etynof private the that of the been addressed busin. L P 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 material facts and committed the acts d of in ante on the truthfully all the Advice given. This letter is a public record and will be made available as such. Regola, 00 -539 March 13, 2000 Page 6 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. Vincent J. Dopko Chief Counsel