HomeMy WebLinkAbout00-606 JonesCary D. Jones, Esquire
Marriner, Jones & Fitch
800 Washington Trust Building
Washington, PA 15301 -4792
ADVICE OF COUNSEL
September 11, 2000
00 -606
Re: Conflict; Public Official /Employee; Member; Borough; Council; Immediate Family;
Zoning; Code Enforcement; Litigation; College; Administrator; Professor;
Employee; Independent Contractor; Executive Session; Vote.
Dear Mr. Jones:
This responds to your letter of May 19, 2000, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon borough council
members as to articipating in discussions or votes relating to litigation involving a local
college where: 1) one council member is a member of the college administration; 2) one
council member is a member of the college faculty; 3) one council member's spouse is an
employee of the college; and 4) one council member is an independent contractor who
receives compensation for working at athletic events at the college.
Facts: Your law firm is the solicitor for a Pennsylvania borough with a population of
less than 3,000 ("Borough"). Over the years, a private liberal arts college ( "College ") that
owns real estate in the Borough has engaged the Borough in zoning or code enforcement
issues ranging from approvals of uses to citations for code violations. The Borough is
presently in the midst of litigation with the College. The litigation is in the form of the
College's appeal to the Court of Common Pleas from a decision of the Borough's
Planning Commission and Borough Council's imposition of certain conditional uses on
two houses that the College has converted into student housing.
You believe that the litigation between the Borough and the College will be
resolved amicably since both parties are involved with settlement discussions. You state
that all discussions concerning the litigation and settlement proposals have been
communicated by you to Council in executive session.
The Borough Council consists of seven members, four of whom have some ties
with the College. Council Member A is the Assistant Dean of Student Affairs who
supervises the College's Residence Life Program and Greek Life Program. Council
Member B, a tenured professor, is a member of the College faculty. Council Member C's
Jones, 00 -606
September 11, 2000
Page 2
wife is a College employee. Council Member D is an independent contractor who
receives compensation for operating the timer clock at home football and basketball
games during the school year.
You are particularly concerned about discussing litigation strategy in executive
session in the presence of Council Member A because you consider him to be a member
of the College administration. You are concerned that your acknowledgment of any
weaknesses in the Borough's position will not be confidential. You have met only one
time with Council in executive session since Council Member A has assumed office.
When you asked Council Member A to excuse himself from the executive session due to
your concerns about confidentiality, he refused. Although you conducted the executive
session, you felt as though your presentation was affected and constrained because you
felt as though you were "talking to the enemy."
You pose the following questions.
1. Whether Council Member A, B, C, or D must excuse himself from any
executive session in which matters of strategy involving the litigation with the College are
being discussed; and
2. Whether Council Member A, B, C, or D must abstain from voting on any
motions concerning the litigation.
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.
As Council Members for a Pennsylvania borough, Council Members A, B, C, and
D are public officials as that term is defined in the Ethics Act, and hence Council
Members A, B, C, and D 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
Jones, 00 -606
September 11, 2000
Page 3
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.
sister.
65 Pa.C.S. §1103(j).
"Immediate family." A parent, spouse, child, brother or
"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.
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.
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September 11, 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. It is clear that the College is a business
with which Council Members A, B and Council Member C's spouse, an immediate family
member, are associated. Based upon your specific factual representation that Council
Member D is an independent contractor, rather than a College employee, the College is
not a business with which Council Member D is associated.
Having established the above, pursuant to Section 1103(a) of the Ethics Act,
Council Members A, B and C would be prohibited from using the authority of their office
as Council Members or confidential information for a private pecuniary benefit of the
College. In each instance of a conflict, Council Members A, B and C would be required
to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act.
The questions you have posed shall now be addressed.
To the extent that you are asking for advice with regard to the Council Members'
conduct in past executive sessions, you are advised that such past conduct may not be
addressed in the context of an advisory. Pursuant to Section 1107(10) and 1107(11) of
the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct.
However, to the extent you have inquired as to the Council Members' future conduct,
your inquiry may, and shall be addressed.
With regard to your question as to whether Council Member A, B, C, or D must
excuse himself from any executive session in which litigation strategy is discussed, you
are advised as follows. Council Member A would have a conflict of interest as to any
matter before the Borough Council that would involve the College, a business with which
that Council Member is associated. Any participation by Council Member A could have
an impact upon the College, including settlement, which could impact upon whether the
College pays damages or attorneys' fees. The same would hold true for Council
Members B and C. There would be no prohibition upon participation by Council Member
D in the executive session since the College is not a business with which Council
Member D is associated.
This case is analogous to Van Rensler, Opinion 90 -017. One of the issues in Van
Rensler was whether the Ethics Law prohibited school board directors from participating
on a negotiating team when members of their immediate families were school district
employees represented by the bargaining units.
The Commission held that the Ethics Law precluded the participation of the
directors in the negotiation process. Citing prior opinions under former Act 170 of 1978,
the Commission recognized that the underlying reasoning of those prior opinions was to
ensure that public officials are impartial and that their private interests are sufficiently
separated from their responsibility to the public. Van Rensler, at 4. The Commission
cited the definition of "conflict of interest" in Act 9 of 1989 as specifically prohibiting a
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September 11, 2000
Page 5
public official or employee from using confidential information obtained through public
office or employment for an immediate family member's private pecuniary benefit. A
school board director participating on the negotiating team would be privy to confidential
information relating to the family member's bargaining units. The risk of disclosure of that
information was held to preclude the school board directors from participating in
negotiations where family members are part of the bargaining unit. In so holding, the
negotiations process would be free of any influence of such a school board director and
the potential for the use of confidential information would be "minimized if not eliminated ".
Id., at 4 -5. Thus, a fundamental basis for the Van Rensler opinion was precluding the
use of confidential information obtained through the public office as a school board
director to defeat the bargaining process.
Based upon Van Rensler, Council Members A, B and C would be prohibited from
discussing litigation strategy and participating in negotiations regarding settlement with
fellow Council Members in executive session because of the risk of disclosure of
confidential information that the Ethics Act prohibits. In each instance of a conflict, the
Council Members A, B and C would be required to abstain from any participation of any
nature whatsoever, including but not limited to, taking any part in discussions, votes,
lobbying for a particular result, or any other use of authority of office. See, Juliante,
Order No. 809. Further, Council Members A, B and C would be required to observe the
disclosure requirements of Section 1103(j) of the Ethics Act.
As for your second question, because Council Members A, B and C would have a
conflict as to any matter involving the College, they would be prohibited from voting on
motions concerning the litigation between the College and the Borough. As noted above,
in each instance of a conflict, Council Members A, B and C would be required to abstain
from participation and observe the disclosure requirements of Section 1103(j) of the
Ethics Act.
Because Council Member D would not have a conflict as to matters involving the
College, he /she would not be prohibited from participating in discussions related to
litigation strategy or negotiations regarding settlement or taking any official action
concerning the litigation between the College and the Borough.
Because only three of the seven Council Members would have a conflict in the
instant case, the voting exception of Section 1103(j) of the Ethics Act would not apply.
Mlakar, supra, makes it clear that it is only when the governmental body is unable to take
official action because the majority or other legally required vote is unattainable due to
the number of members required to abstain, that such abstaining members will be
permitted to vote if proper disclosures are made. Thus, in the case of the Borough
Council, a seven - member council, four Council Members would have to have a conflict
under the Ethics Act in order to make the majority or other legally required vote
"unattainable." The fact that three Council Members would have a conflict would be an
insufficient basis under Section 1103(j) for these members to vote since a majority or
other legally required vote could still be attainable despite their abstention.
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 Borough Council Members, Council Members A, B, C, and D are
public officials subject to the provisions of the Public Official and Employee Ethics Act
("Ethics Act "), 65 Pa.C.S. §1101 et seq. The College is a business with which Council
Members A ,B and Council Member C's spouse are associated. Based upon your
specific factual representation that Council Member D is an independent contractor,
rather than a College employee, the College is not a business with which Council
Jones, 00 -606
September 11, 2000
Page 6
Member D is associated. Pursuant to Section 1103(a) of the Ethics Act, Council
Members A, B and C would be prohibited from using the authority of their office or
confidential information, for a private pecuniary benefit of the College. Specifically, a
conflict of interest would exist in any matter brought before Borough Council involving the
lawsuit between the Borough and the College. In each instance of a conflict, Council
Members A, B and C would be required to abstain from any participation of any nature
whatsoever, in matters involving the College, including discussions regarding litigation
strategy and settlement negotiations. Council Members A, B and C would be required to
observe the disclosure requirements of Section 1103(j) of the Ethics Act. Because
Council Member D would not have a conflict as to matters involving the College, he /she
would not be prohibited from participating in discussions related to litigation strategy or
negotiations regarding settlement or taking any official action concerning the litigation
between the College and the Borough. If a voting deadlock would occur in the seven -
member Council, four Council Members would have to have a conflict under the Ethics
Act in order to make the majority or other legally required vote unattainable. The fact that
three Council Members would have a conflict would be an insufficient basis under
Section 1103(j) for these members to vote since a majority or other legally required vote
could still be attainable despite their abstention. 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 such an appeal at
the Commission within thirty (30) days may result in the dismissal of
the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel