HomeMy WebLinkAbout00-608 ConleyJohn R. Conley
5192 Elmwood Drive
Pittsburgh, PA 15227 -3628
ADVICE OF COUNSEL
September 18, 2000
00 -608
Re: Conflict; Public Official /Employee; Member; Borough; Council; Personnel
Director; Immediate Family; Daughter; Police Dispatcher; Vote.
Dear Mr. Conley:
This responds to your letter of August 15, 2000 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
presents any prohibition or restrictions upon a borough council member who is also
the borough personnel director as to participating in borough action regarding the
employment of his daughter as the borough police dispatcher.
Facts: As a Council Member and Personnel Director for Baldwin Borough
( "Borough "), you seek an advisory from the State Ethics Commission regarding the
requirements of the Ethics Act as to the potential hiring of your daughter as the
Borough Police Dispatcher. The facts which you have submitted may be fairly
summarized as follows.
You state that your daughter is 25 years old and is married. During your 3
years in office, the Police Dispatcher position has been open three times. However,
this is the first time that your daughter has applied for the position.
You state that you intend to remain entirely neutral on the matter and prefer to
be absent when Borough Council conducts interviews. You further state that you do
not want to discuss the hiring process with any Borough employees or Council
Members.
Based upon the above, you seek the advice of the State Ethics Commission
as to the restrictions that you must observe.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (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.
Conley, 00 -608
September 18, 2000
Page 2
As a Council Member and Personnel Director for Baldwin Borough, you are a
public official /public employee subject to the provisions of the Ethics 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 that pertain to Section 1103(a) 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.
Section 1103(f) of the Ethics Act provides as follows:
Section 1103. Restricted activities
(f) Contract. - -No public official or public
employee or his spouse or child or any business in which
the person or his spouse or child is associated shall enter
into any contract valued at $500 or more with the
governmental body with which the public official or public
employee is associated or any subcontract valued at
$500 or more with any person who has been awarded a
contract with the governmental body with which the
public official or public employee is associated, unless
the contract has been awarded through an open and
public process, including prior public notice and
Conley, 00 -608
September 18, 2000
Page 3
subsequent public disclosure of all proposals considered
and contracts awarded. In such a case, the public official
or public employee shall not have any supervisory or
overall responsibility for the implementation or
administration of the contract. Any contract or
subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract
or subcontract.
65 Pa. C. S. §1103(f).
Section 1103(f) does not operate to make contracting with the
governmental body permissible where it is otherwise prohibited. Rather, where a
public official /public employee, his spouse or child, or a business with which he,
his spouse or child is associated, is otherwise appropriately contracting with the
governmental body, or subcontracting with any person who has been awarded a
contract with the governmental body, in an amount of $500.00 or more, Section
1103(f) requires that an "open and public process" be observed as to the contract
with the governmental body. Pursuant to Section 1103(f), an "open and public
process" includes:
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to
be able to prepare and present an application or proposal;
(3) public disclosure of all applications or proposals considered; and
(4) public disclosure of the contract awarded and offered and
accepted.
Section 1103(f) of the Ethics Act also requires that the public
official /employee may not have any supervisory or overall responsibility as to the
implementation or administration of the contract with the governmental body.
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
Conley, 00 -608
September 18, 2000
Page 4
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, 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 facts which you
have submitted, 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 obtained 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. Your daughter is a member of
your "immediate family."
Through a straightforward application of Section 1103(a) of the Ethics Act,
you would have a conflict of interest with regard to using the authority of your
position(s) as Borough Council Member or Borough Personnel Director, or
confidential information obtained by being in such position(s), for the private
pecuniary benefit of your daughter.
You would specifically have a conflict under Section 1103(a) of the Ethics
Act with regard to the selection of the Borough Police Dispatcher because your
daughter has applied for that position. Because of your conflict, you would be
required to abstain not only from voting but also from other hiring processes such
as the review of applications, interviewing of applicants, and the like. You would
be precluded from discussing, conferring with others, and lobbying for your
daughter's benefit. See, Juliante, Order No. 809. You would be prohibited from
acting /voting to negatively impact your daughter's competitor(s) for the position.
See, Pepper, Opinion 87 -008.
If your daughter would be hired as the Borough's Police Dispatcher, you
could face further potential conflicts in matters coming before you as the
Personnel Director or as a Borough Council Member where such matters would
financially impact your daughter.
In each instance of a conflict, you would be required to abstain fully and to
satisfy the disclosure requirements of Section 1103( of the Ethics Act set forth
above.
Additionally, the restrictions of Section 1103(f) as set forth above would
apply to the hiring of your daughter as the Borough Police Dispatcher because
the contract between the Borough and your daughter would be valued at $500 or
Conley, 00 -608
September 18, 2000
Page 5
more. Consequently, the restrictions of Section 1103(f) as set forth above would
have to be observed under the facts as you have presented them.
Lastly, 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 Borough Code.
Conclusion: As a Council Member and Personnel Director for Baldwin
Borough ( "Borough "), you are a public official /public employee subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq. Your daughter is a member of your immediate family.
Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from
using the authority of your position(s) as a Borough Council Member or Borough
Personnel Director, or confidential information obtained by being in such
position(s), for the private pecuniary benefit of your daughter. You would
specifically have a conflict as to the selection of the Borough Police Dispatcher
because your daughter has applied for that position. If your daughter would be
hired as the Borough's Police Dispatcher, you could face further potential
conflicts in matters coming before you as the Borough Personnel Director or as a
Borough Council Member where such matters would financially impact your
daughter. In each instance of a conflict, you would be required to abstain fully
and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
Additionally, the restrictions of Section 1103(f) noted above would have to be
observed as to the hiring of your daughter as the Borough Police Dispatcher.
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 IDy 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