HomeMy WebLinkAbout01-583 DalyJames J. Daly
Borough of Sayre Council
P.O. Box 39
Sayre, PA 18840 -0039
Dear Mr. Daly:
ADVICE OF COUNSEL
August 6, 2001
01 -583
Re: Conflict; Public Official /Employee; Borough; Council Member; Immediate Family
Member; Sister; Secretary; Salary Increase; Budget; Vote.
This responds to your letter of July 2, 2001, 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 borough council
member as to serving on council when his sister serves as borough secretary, and voting
to approve the budget when it contains a separate line item for the borough secretary.
Facts: You are a member of the Borough of Sayre Council, having been appointed
in November 1997 for a four -year term commencing January 2000.
Borough Council hired your sister, Jo Ann Daly, as an office clerk in February
1996 and promoted her to the position of Borough Secretary prior to your appointment.
Your sister is a "confidential employee" under the terms of her employment contract and
is not a member of the non - uniformed bargaining unit. Your sister's contract stipulates
that she will receive the same pay and benefits that the union members receive through
their contract with the Borough. The union contract provides for a 4% per year increase
over the life of the contract. You state that since the union contract has been applied to
all non - uniformed employees, you have voted on the budgets for 1998 through 2000.
In August 2000, your sister earned her Certified Government Secretary
Certification through the Pennsylvania Local Government Secretaries Association and
requested a pay increase above the 4% awarded to the non - uniformed bargaining unit.
Six other Council members discussed this matter at a budget workshop on October 31,
2000 and agreed to add a $1.00 per hour increase to the 4% raise. You state that you
did not participate in these discussions. In January 2001, Council approved your sister's
pay raise by a 6 -0 vote with one (your) abstention. You participated in Council's vote to
approve the 2001 budget. You state that the Mayor actively opposed the budget due to
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August 6, 2001
Page 2
the inclusion of a garbage collection fee. You further state that the Mayor was very
critical of your vote on the budget because of the Borough Secretary's salary line item,
but was unsuccessful in overturning the vote on this issue.
You do expect this issue to reoccur. You state that some people believe it is
inappropriate for you to be on Council while your sister is a Borough employee. This
year, your sister will receive the award of International Municipal Secretary and may
request consideration for an additional pay raise.
You state that you thoroughly understand that you must abstain from voting on
matters that financially impact your sister. However, given the public interest in the issue
described above, you request an advisory on how you should proceed on future budget
votes and other related activities.
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 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 member of the Borough of Sayre Council, 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 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 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.
Daly, 01 -583
August 6, 2001
Page 3
"Immediate family." A parent, spouse, child, brother
or sister.
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, 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
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August 6, 2001
Page 4
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 your sister is a member of your "immediate family" as that term is
defined under the Ethics Act. Pursuant to Section 1103(a), you would have a conflict as
to matters before Borough Council that would result in a financial gain to yourself or your
sister. 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.
Having set forth the above general principles, your inquiries shall now be
addressed.
The Ethics Act would not prohibit you from serving on Borough Council while your
sister is a Borough employee. However, as stated above, you would have a conflict as to
participating in matters before Borough Council that would result in a financial gain to
your sister, as for example, increases in our sister's salary. Because you would have a
conflict, you could not participate in budget workshops where your sister's salary would
be discussed or votes by Council to approve an increase in your sister's salary. Further,
you would be required to observe the disclosure requirements of Section 1103(j) of the
Ethics Act.
As to voting on the budget, it would appear that funding for the Borough Secretary
is a separate line item. Thus, you would have a conflict as to that particular line item in
the budget concerning your sister and would be required to abstain and observe the
disclosure requirements as to that one line item per Section 1103(j).
Even assuming you would have a conflict of interest, Section 1103(a) provides two
exclusions from conflicts: the de minimis exclusion and the class /subclass exclusion.
The de minimis exclusion would not apply since any increase in your sister's salary would
not have an economic consequence that would be insignificant.
In order for the class /subclass exclusion to apply, your sister would have to be in a
class /subclass consisting of more than one person and be affected to the same degree
as other members of the class /subclass. In that your sister is the Borough Secretary, it
appears that the "class /subclass" exclusion in the definition of "conflict of interest" would
not apply, given that your sister has and may continue to receive individual treatment as
to her compensation.
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 member of the Borough of Sayre Council, 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. The Ethics Act would not prohibit you from serving on
Borough Council while your sister is a Borough employee. However, you would have a
conflict as to participating in matters before Borough Council that would result in a
financial gain to your sister, as for example, increases in your sister's salary. Because
you would have a conflict, you could not participate in budget workshops where your
sister's salary would be discussed or votes by Council to approve an increase in your
sister's salary. Further, you would be required to observe the disclosure requirements of
Section 1103(j) of the Ethics Act.
Daly, 01 -583
August 6, 2001
Page 5
As for the budget, you would have a conflict as to the line item in the budget
concerning your sister, the Borough Secretary. Further, you would be required to abstain
and observe the disclosure requirements as to that one line item per Section 1103(j).
In that your sister is the Borough Secretary, the "class /subclass" exclusion in the
definition of "conflict of interest" would not apply, given that she has and may continue to
receive individual treatment as to her compensation.
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 §13.20. 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