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HomeMy WebLinkAbout02-517 WhelanJohn J. Whelan, Esquire The James V. Catania Building 520 West MacDade Blvd. Milmont Park, PA 19033 Re: Conflict; Public Official /Employee; Borough; Council Member; Immediate Family Member; Spouse; Police Officer; Police Chief; Contract; Vote. Dear Mr. Whelan: ADVICE OF COUNSEL February 13, 2002 02 -517 This responds to your letters of December 27, 2001, and January 10, 2002, 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 voting on the borough police chief's contract when the council member's spouse is a non - ranking police officer who is directly supervised by the police chief. Facts: As Solicitor for the Borough of Eddystone, Delaware County, Pennsylvania ( "Borough "), you seek an advisory on behalf of Karen Reeves ( "Reeves "), a newly elected Borough Council Member. Reeves' spouse is a non - ranking Borough police officer who is directly supervised by the Chief of Police, the highest ranking officer in the Borough. Approximately two years ago, the Borough Mayor and the current Chief of Police suspended Reeves' spouse for three days for a matter not disclosed in your letter. The Fraternal Order of Police appealed the suspension and an arbitration was held. The arbitrator rescinded the suspension and expunged any record of the suspension. In December 2001 prior to Reeves serving on Council, the Borough Council approved a four -year contract granting additional benefits and confirming existing benefits for the Borough Chief of Police. One of the council members who voted against the contract at that time intends to "raise the issue" again with the Council that has just come into power in January 2002. You opine that Reeves may not vote on any issue before Council that would deal with a police benefit that would directly benefit her, such as an increase in salaries for Whelan, 02 -517 February 13, 2002 Page 2 the officers. However, you ask whether Reeves would have a direct or indirect conflict in voting to approve or disapprove a contract pertaining to the Chief of Police. 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 Council Member for Eddystone Borough, Karen Reeves ( "Reeves ") is a public official as that term is defined in the Ethics Act, and hence Reeves is 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. "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 Whelan, 02 -517 February 13, 2002 Page 3 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 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. Reeves' spouse is clearly a member of her immediate family. Therefore, Reeves would have a conflict as to any matter before Borough Council that would result in a financial gain to herself or her spouse. In each instance of a conflict, Reeves would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Whelan, 02 -517 February 13, 2002 Page 4 With regard to the question you have posed, absent the element of a private pecuniary benefit to Reeves or a member of her immediate family, a conflict of interest would not exist and consequently Section 1103(a) of the Ethics Act would not prohibit Reeves from voting on the Police Chief's contract. This conclusion is conditioned upon the assumption that there would be no improper understandings as set forth in Sections 1103(b) and (c) of the Ethics Act as discussed above. Again, it is not suggested that Reeves would engage in such conduct and the above is provided in order to provide a complete response to your request. Absent any use of authority of office for a private pecuniary benefit of an immediate family member, improper understanding, or nexus between Reeves' action and the Police Chief as to Reeves' spouse, Sections 1103 (a), (b) and (c) would not prohibit her from voting on the Police Chief's contract. However, participation in the Police Chief's contract or other matter(s) involving the Police Chief could be problematic. In particular, any instance of Reeves' participation as to the Police Chief could be indicative of a conflict if such action would favor the Police Chief who separately would take action that would favor Reeves' spouse. See, Confidential Opinion 00 -007. Every scenario obviously hinges upon its unique factual circumstances. However, given the inherent potential for conflict, Reeves might consider that the better and more prudent course of action on her part would be to abstain. 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 Council Member for Eddystone Borough, Karen Reeves ("Reeves ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Reeves' spouse is a member of her immediate family. Pursuant to Section 1103(a) of the Ethics Act, Reeves would have a conflict as to any matter before Borough Council that would result in a financial gain to herself or her spouse. In each instance of a conflict, Reeves would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit Reeves from voting on the Police Chief's contract because such action would not result in a private pecuniary benefit to Reeves herself or a member of her immediate family. Reeves might consider that the better and more prudent course of action on her part would be to abstain. 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 Whelan, 02 -517 February 13, 2002 Page 5 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