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HomeMy WebLinkAbout00-552 VitanovecShirley Morio Vitanovec 815 South Franklin Street Wilkes- Barre, PA 18702 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 28, 2000 Re: Conflict; Public Official /Employee; City; Council; Member; Immediate Family Member; Husband; President; Teamster's Union; Vote. Dear Ms. Vitanovec: This responds to your letter of February 21, 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 el seq., presents any prohibition or restrictions upon a city council member as to participating in discussions or votes to privatize the city's municipal refuse collection services where: (1) the refuse collection services are currently performed by the city's department of public works employees; and (2) the council member's husband is the president of the same teamsters union that represents the department of public works employees. Facts: You are a Council Member for the City of Wilkes -Barre ( "City "), having commenced your four -year term on January 3, 2000. Your husband, George Vitanovec is an official with the local teamsters union that also represents the City's Department of Public Works ( "DPW ") employees. Your husband, however, does not represent the DPW employees who are represented by another official, Mr. Joseph Gorham. You state that in the past, your husband has been present during meetings between the City and the teamsters union. The City is proposing to privatize its garbage collection and recycling activities which are currently being performed by the DPW employees. You state that under the City's Home Rule Charter, City Council must vote upon the contract to privatize the municipal refuse collection services. You have submitted a copy of a memorandum dated February 9, 2000 from the Mayor to you regarding the transcript of Council's proceedings of January 27, 2000; a memorandum dated February 10, 2000 from the Mayor to you regarding the Budget Hearing of February 9, 2000; and a letter dated February 11, 2000 listing three reasons why you do not believe you would have a conflict, all of which documents are incorporated herein by reference. It is noted that the Mayor's February 10, 2000 memorandum indicates that your spouse is the President of the Teamster's Union and that you oppose privatizing the municipal refuse collection services. FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -552 Vitanovec, 00 -552 March 28, 2000 Page 2 Given the above facts, you ask whether you would have a conflict of interest in participating on the vote to privatize the City's garbage collection and recycling activities. You also ask whether, in the future, you must refrain from taking official action on all issues affecting DPW workers. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) 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 a Council Member for City of Wilkes- Barre, ( "City ") 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 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. Vitanovec, 00 -552 March 28, 2000 Page 3 "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 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 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). Vitanovec, 00 -552 March 28, 2000 Page 4 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. You have only stated that your spouse is President of the local teamsters union. Therefore, it shall be assumed as a fact that your spouse is not a City DPW employee. 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. Further, the teamsters union of which your husband is President, is a business with which he is associated. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your office as a Council Member or confidential information for the private pecuniary benefit of yourself, your husband or the teamster's union. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As for your first question, it is noted that you oppose privatizing the City's garbage collection and recycling services. If voting against the privatization proposal would result in a private pecuniary benefit to your husband or the business with which he is associated, the local teamsters union, then you would have a conflict. In Hessinger, Order 931, affirmed in part, R.H. and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996), the Commission held that a township supervisor who voted to appeal an action filed by township supervisors challenging the hourly rate of wages as township employees, received a pecuniary benefit to the extent that he was able to avoid a financial loss because the legal expenses for the appellate litigation were paid by the township. The facts which you have submitted are insufficient to enable a conclusive determination as to whether the your participation in opposing privatization would financially benefit your spouse or the union, as a business with which your spouse is associated. As general guidance, you are advised that if, for example, your opposition to privatization would avoid a lay -off of DPW employees, a consequent reduction in dues- paying members of the union, and therefore, a loss of dues to the union and /or a reduction in salary to your spouse, a prohibited private pecuniary benefit would result and a conflict would exist. Accordingly, you are advised that you would not have a conflict as to participating on the privatization issue as to the garbage collection and recycling services, provided factually that such action would not eliminate any negative financial Vitanovec, 00 -552 March 28, 2000 Page 5 impact upon your spouse or the local teamsters union which is the business with which he is associated. As to your second question, you would not have a conflict as to matters affecting DPW employees unless such matters would result in a financial gain to yourself, your spouse or the union which is the business with which he is associated. In any instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) set forth above. Finally, you are advised that not only would Section 1103(a) of the Ethics Act prohibit you from voting in any matter where you would have a conflict, but you would also be precluded from participating in discussions related to such matters. This is true because the use of authority of office is more than the mere mechanics of voting. It encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular benefit. 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 Council Member for City of Wilkes -Barre ( "City "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Your husband is a member of your immediate family. Further, the local teamsters union of which your husband is President, is a business with which he is associated. Section 1 103(a) of the Ethics Act would prohibit you from using the authority of your office as Council Member or confidential information for the private pecuniary benefit of yourself, your spouse or the teamsters union. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. The facts which you have submitted are insufficient to enable a conclusive determination as to whether the your participation in opposing privatization would financially benefit your spouse or the union, as a business with which your spouse is associated. If your opposition to privatization would avoid a lay -off of DPW employees, a consequent reduction in dues - paying members of the union, and therefore, a loss of dues to the union and /or a reduction in salary to your spouse, a prohibited private pecuniary benefit would result and a conflict would exist. You are advised that you would not have a conflict as to participating on the privatization issue as to the garbage collection and recycling services, provided factually that such action would not eliminate any negative financial impact upon your spouse or the local union which is the business with which he is associated. You would not have a conflict as to matters affecting DPW employees unless such matters would result in a financial gain to yourself, your husband or the union which is the business with which he is associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Vitanovec, 00 -552 March 28, 2000 Page 6 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. ince ly incent J. pko Chief Counsel