HomeMy WebLinkAbout00-590 MascaraMark E. Mascara, Esq.
25 West Beau Street
Washington, PA 15301
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
July 10, 2000
00 -590
Re: Conflict; Public Official /Employee; Member; Sewer Authority; Borough Employee;
Borough Street Department; Collective Bargaining Agreement.
Dear Mr. Mascara:
This responds to your letters of April 11, 2000 and June 6, 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 with regard to a borough
street department employee also serving on the borough sewage authority board when
the collective bargaining agreement between the borough and the union allows for
borough employees to perform work at the borough sewage plant as needed.
Facts: As the Solicitor for the Borough of New Eagle, Pennsylvania ( "Borough "),
you ave been authorized by the New Eagle Borough Council ( "Borough Council) to
seek an advisory from the State Ethics Commission regarding the prospective
appointment of a Borough Street Department employee ( "Borough Employee ") to serve
as a member of the New Eagle Borough Sewage Authority ( "Authority ). You state that
normally such an appointment would not present a conflict of interest, but the Collective
Bargaining Agreement ( "Agreement ") between the Borough and the Union allows for
Borough employees to work at the sewage plant when needed, and vice versa. You have
submitted the relevant Subsection of the Agreement (Article VII, Subsection D), which
provides in pertinent part as follows:
The Employer shall have the right and be permitted flexibility to assign
any and all work tasks within the Department to any employee covered
under the terms and conditions of this Collective Bargaining Agreement.
The intent being that if there is a need for employees to perform work in
the Sewer Area, the Borough may assign any employees who are part of
this Collective Bargaining Agreement to perform said tasks, provided
said employee is qualified. Conversely, if there are work tasks to be
performed in the Public Works area, the Borough may assign
representatives of the Sewer Department to perform such tasks. Again,
provided that the employee is qualified.
Agreement, Article VII, Subsection D.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state_ca.us
Mascara, 00 -590
July 10, 2000
Page 2
You ask whether there would be a conflict of interest under the Ethics Act if the
Borough Employee would be appointed to serve as a Member of the Authority and then,
pursuant to the Agreement, would perform work at the sewage plant in his capacity as 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 request 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.
Upon being appointed to serve as a Member of the Authority, the Borough
Employee would become a public official as that term is defined in the Ethics Act, and
hence he would be subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§ 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:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a ublic
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
f pecuniary benefit of himself, a member of his immediate
amily 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.
"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
Mascara, 00 -590
July 10, 2000
Page 3
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:
§ 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).
In each instance of a conflict of interest, 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.
Mascara, 00 -590
July 10, 2000
Page 4
It is initially noted that the possibility that conflicts of interest could arise under the
Ethics Act would not preclude the Borough Employee from serving as an Authority
Member, nor would it preclude his working as a Borough employee at the sewage plant
following his appointment as an Authority Member.
However, pursuant to Section 1103(a) of the Ethics Act, a conflict of interest would
exist if the Borough Employee, as a Member of the Authority, would use the authority of
his office or confidential information received by holding such a public position for the
private pecuniary benefit of himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
Although the Agreement provides for flexibility in the assignment of Borough
employees to perform work at the Authority, it is not clear from the facts which you have
submitted exactly who determines the need for work by Borough employees at the
Authority, or how such a determination is made. It is also not clear to what extent such
work at the Authority financially impacts the assigned employees. Consequently, this
Advice is limited to providing general guidance.
A conflict of interest would generally exist for the Borough Employee in his
capacity as an Authority Member with regard to Authority action that would impact upon
him financially for work performed as a Borough employee at the Authority. Thus, for
example, a conflict of interest could exist for the Borough Employee if he, as an Authority
Member, would fix his own compensation or the number of hours he would work at the
sewage plant.
Furthermore, to the extent that the Borough Employee as a Member of the
Authority would exercise control over any subordinates who would make decisions
concerning him as a Borough employee working at the sewage plant, the Borough
Employee in his capacity as an Authority Member would generally have a conflict of
interest in matters involving such subordinates. See, Bassi, Opinion 86- 007 -R;
Woodrinq, Opinion 90 -001.
In each instance of a conflict of interest, the public employee would be required to
abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act set
forth above.
A conflict of interest would not exist as to official action "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 ...." 65 Pa.C.S. 1102. Thus,
official action affectin to the same degree a class /subclass of Borough employees
including the Borough Employee in question, who, pursuant to the Agreement, may work
at the sewage plant, would not present a conflict of interest. This exception would only
the apply Borough Employee ee would be affected to the same as the other members of the rug y
the class /subclass.
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 he 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 Borough Code or the Municipality Authorities Act of 1945.
Conclusion: Upon being appointed to serve as a Member of the New
Eagle Borough Sewer Authority ( "Authority'), the New Eagle Borough ( "Borough ") Street
Department Employee ( "Borough Employee ") about whose conduct you have inquired
would become a public official subject to the provisions of the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §1101 et seq. The possibility that
conflicts of interest could arise under the Ethics Act would not preclude the Borough
Employee from serving as an Authority Member, nor would it preclude his working as a
Mascara, 00 -590
July 10, 2000
Page 5
Borough employee at the sewage plant following his appointment as an Authority
Member. Pursuant to Section 1103(a) of the Ethics Act, a conflict of interest would exist
if the Borough Employee, as a Member of the Authority, would use the authority of his
office or confidential information received by holding such a public position for the private
pecuniary benefit of himself, any member of his immediate family, or a business with
which he or a member of his immediate family is associated. A conflict of interest would
generally exist for the Borough Employee in his capacity as an Authority Member with
regard to Authority action that would impact upon him financially for work performed as a
Borough employee at the Authority. A conflict of interest could exist for the Borough
Employee if he, as an Authority Member, would fix his own compensation or the number
of hours he would work at the sewage plant. To the extent that the Borough Employee
as a Member of the Authority would exercise control over subordinates who would make
decisions concerning him as a Borough employee working at the sewage plant, the
Borough Employee in his capacity as an Authority Member would generally have a
conflict of interest in matters involving such subordinates. In each instance of a conflict of
interest, the public employee would be required to abstain and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. A conflict of interest would not exist as
to official action affecting to the same degree a class /subclass of Borough employees
including the Borough Employee in question, who, pursuant to the Collective Bargaining
Agreement between the Borough and the Union, may be assigned to work at the sewage
plant.
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 ll in the dis appeal al of
the Commission within thirty (30) days may result
appeal.
D
Vincent J.`Dopko
Chief Counsel