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HomeMy WebLinkAbout01-507 FilbeyGary R. Filbey 1274 Jefferson Road P.O. Box 12 Jefferson, PA 15344 ADVICE OF COUNSEL January 17, 2001 01 -507 Re: Conflict; Public Official /Employee; Board Member; Water Authority; Immediate Family; Wife; Hiring; Vote. Dear Mr. Filbey: This responds to your letter of December 14, 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 a member of the board of directors of a water authority with regard to the hiring of his wife by the authority. Facts: As a Member of the Board of Directors ( "Board ") of the Southwestern Pennsylvania Water Authority ( "Water Authority "), you seek an advisory from the State Ethics Commission. You have submitted the following facts. For the past sixteen years, you have been an employee of the Water Authority. In May 2000, you also became a member of the Water Authority Board. Due to expansion, the Board has been discussing hiring an additional secretary. You state that your wife has had an application on file with the Water Authority for more than seven years. You ask whether the Ethics Act would impose restrictions with regard to the hiring of your wife by the Water Authority. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of Filbey, 01 -507 January 17, 2001 Page 2 an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Member of the Water Authority Board, you are a public official subject to the provisions of the Ethics 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 that pertain to Section 1103(a) are defined in the Ethics Act as follows: $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. In applying the above provisions of the Ethics Act to the circumstances 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 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. Your wife is a member of your immediate family. Although the Ethics Act would not preclude the hiring of your wife by the Water Authority, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest and would be prohibited from using the authority of your office as a Water Filbey, 01 -507 January 17, 2001 Page 3 Authority Board Member or confidential information that you would have access to by being in that position to advance the hiring of your wife by the Water Authority. A conflict would exist even as to action to eliminate competitor(s), where such action would assure or increase the possibility that your wife would be hired by the Water Authority. See, Pepper, Opinion 87 -008. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The abstention requirement would not be limited to voting, but would extend to any use of authority of office. The use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. See, Juliante, Order 809. 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 Municipality Authorities Act of 1945. Conclusion: As a Member of the Board of Directors ( "Board ") of the Southwestern Pennsylvania Water Authority ( "Water Authority"), you are a public official subject to the p rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 seq. Although the Ethics Act would not preclude the hiring of your wife by the Water Authority, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest and would be prohibited from using the authority of your office as a Water Authority Board Member or confidential information that you would have access to by being in that position to advance the hiring of your wife by the Water Authority. A conflict would exist even as to action to eliminate competitor(s), where such action would assure or increase the possibility that your wife would be hired by the Water Authority. In each instance of such a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) set forth above. 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 Filbey, 01 -507 January 17, 2001 Page 4 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