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HomeMy WebLinkAbout02-527 GustkeyThomas Gustkey 414 Locust Street Conemaugh, PA 15909 Dear Mr. Gustkey: ADVICE OF COUNSEL March 5, 2002 02 -527 Re: Conflict; Public Official /Employee; Borough; Council Member; Part -time Employee; Laborer; Class /Subclass Exclusion; Union Contract; Wage Increase; Vote. This responds to your letters of January 22, 2002, and January 29, 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 a union contract that contains a wage increase when the council member is a borough employee who is covered by that contract. Facts: You are a member of the East Conemaugh Borough Council, a seven - member Council. You have submitted a copy of your Certificate of Election issued by the Cambria County Board of Elections, which is incorporated herein by reference. You are also a part -time laborer with the Highway Department of East Conemaugh Borough ( "Borough "), which you state has a population of approximately 1200. There are five art -time and full -time laborers employed by the Borough. You pay that your ay rate schedule is set by the ASFSCME AFL -CIO Council 83 Union Contract (the " Union Contract "). The Union Contract before Borough Council includes a wage increase whereby all employees who belong to the Union, including two office clerks and one lineman, would all receive the same dollar amount. The wage increase would be the same for full -time and part -time employees, with no variations within the group of full -time and part -time employees in terms of the rate of pay. If the wage increase would be granted, you would receive the exact same pay increase as the other part -time and full -time employees who hold the same position. Gustkey, 02 -527 March 5, 2002 Page 2 You ask whether you may vote on the Union Contract, which contains a wage increase, given that you are a Borough employee. 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 East Conemaugh Borough 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. 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 Gustkey, 02 -527 March 5, 2002 Page 3 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. Turning to your specific question as to whether you would be permitted to vote on the Union Contract, you are advised that 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 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. The Commission, in Van Rensler, Opinion No. 017, applied Section 1103(a) in addressing an issue similar to the one posed above. The issue in Van Rensler was whether the Ethics Law would prohibit school directors, whose members of their immediate families were school district employees represented by bargaining units, from participating on a negotiating team and voting on a collective bargaining agreement. Gustkey, 02 -527 March 5, 2002 Page 4 The Commission held that the Ethics Law would not restrict the school directors from voting on the finalized agreement, but would preclude their participation in negotiations leading up to the finalized agreement. The Commission explained that the school directors could vote on the finalized agreement because of the exclusion in the definition of "conflict" which applies if the immediate family member is a member of a subclass consisting of an industry, occupation or other group containing more than one member and the immediate family member is affected to the same degree as all the other members of the subclass. The Commission stated that as long as the two prerequisites for applying the exclusion were met, the school directors could vote on the final collective bargaining agreement. The Commission's holding that the Ethics Law would preclude the school directors from participating in negotiations was based on its reasoning that by being part of the negotiating team which is part of their public position, the school directors would be necessarily privy to confidential information concerning the bargaining units of which their family members are parts." Van Rensler, at 4. Applying Van Rensler to the question of whether you may vote on the Union Contract, an initial determination must be made as to whether the class /subclass exclusion to applies. In order for that exclusion to apply, you must be in a class /subclass consisting of more than one person and be affected to the same degree as the other members of the class /subclass. You state that there are five part -time and full -time laborers employed by the Borough. You further state that if the wage increase would be granted, you would receive the exact same pay increase as the other part - time or full -time laborers. Thus, under the facts that you have submitted, you would not be precluded from voting on the finalized Union Contract, given that you belong to a class /subclass of laborers consisting of more than one person, and the wage increase contained in the Contract would financially impact you and the other laborers to the same degree. Although you would not be prohibited from voting on the finalized Union Contract, you would be precluded from participating in the negotiations leading to such finalized Contract or receiving confidential information. See, Van Rensler, supra. 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 member of the East Conemaugh Borough 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. You would not be precluded from voting on the finalized Union Contract, given that you belong to a class /subclass of laborers consisting of more than one person, and the wage increase contained in the Contract would financially impact you and the other laborers to the same degree. However, you would be precluded from participating in the negotiations leading to the finalized Contract or receiving confidential information. 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. Gustkey, 02 -527 March 5, 2002 Page 5 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