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HomeMy WebLinkAbout97-588 SedlakJohn H. Doyle Joanne R. Sedlak Municipality of Monroeville 2700 Monroeville Blvd. Monroeville, PA 15146 -2388 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 8, 1997 97 -588 Re: Conflict, Public Official /Employee, Member, Council, Municipality, Vote, Bargaining Unit, Pension, Employee Benefits, Member of Immediate Family. Dear Mr. Doyle and Ms. Sedlak: This responds to your letters dated June 5, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Council Member as to voting on pension and employee benefits either where a member of his or her immediate family is part of the bargaining unit and would be directly benefitted, or the Council Member himself or herself is an active or retired member of a bargaining unit and would be directly benefitted. Facts: As Members of Council for the Municipality of Monroeville, you, John H. Doyle (Doyle) and Joanne R. Sedlak (Sedlak) request an advisory from the State Ethics Commission as to the following factual situations. Doyle asks whether he, as a Member of Council, may vote on an issue regarding a pension benefit and /or employee benefit such as health, holidays, etc., where his daughter and /or spouse is part of the bargaining unit and would be directly benefitted. Additionally, Doyle asks whether he may vote on a pension or employee benefit issue that would be a direct benefit to him as an active or retired member of a bargaining unit of the Municipality of Monroeville. Sedlak asks whether she, as a Member of Council, may vote on an issue regarding a pension benefit and /or employee benefit such as health, holidays, etc., where her son and /or spouse is part of the bargaining unit and would be directly benefitted. Additionally, Sedlak asks whether she may vote on a pension or employee benefit issue that would be a direct benefit to her as an active or retired member of a bargaining unit of the Municipality of Monroeville. Dovle /Sedlak, 97 -588 July 8, 1997 Page 2 DISCUSSiort: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Members of Council for the Municipality of Monroeville, Doyle and Sedlak are public officials as that term is defined under the Ethics Law, and hence Doyle and Sedlak are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. Section 3(j) of the Ethics Law provides as follows: Doyle /Sedlak. 97 -588 July 8, 1997 Page 3 Section 3. Restricted activities (j) 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. In each instance of a conflict, Section 3(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 Law, then voting is permissible provided the disclosure requirements noted above are followed. See, JVllakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Therefore, Doyle's daughter and spouse would be members of his immediate family. Sedlak's son and spouse would likewise be members of her immediate family. Generally, Doyle and /or Sedlak would have a conflict of interest in any matter before Council where the use of the authority of office or confidential information Dovle /Sedlak, 97 -588 July 8, 1997 Page 4 obtained by being in office would result in a pecuniary benefit to themselves, member(s) of immediate family, or business(es) with which they or member(s) of their immediate family are associated. However, matters involving pension benefits and /or employee benefits often apply to a group of employees as opposed to an individual. In such instances, the class /subclass exception to the definition of conflict of interest may apply. Specifically, in instances where Doyle, Sedlak, and /or member(s) of their immediate families would be affected to the same degree as a class or subclass such as a class or subclass of active or retired employees of the municipality of Monroeville, Section 3(a) of the Ethics Law would not restrict participation by Doyle and /or Sedlak in their official capacities provided the class /subclass would consist of more than one person and Doyle, Sedlak, and /or the member(s) of their immediate families would be affected by that action to the exact same degree as all other members of the class /subclass. Davis, Opinion No. 89 -012. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of Monroeville's Home Rule Charter. Conclusion: As Members of Council for the Municipality of Monroeville, John H. Doyle (Doyle) and Joanne R. Sedlak (Sedlak) are public officials subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, Doyle and Sedlak would generally have conflicts of interest in matters before Council that would result in a private pecuniary benefit to themselves and /or member(s) of their immediate families. However, Doyle and /or Sedlak would not have a conflict of interest and would not be precluded from participating in matters such as issues involving pension benefits and /or employee benefits, where Doyle, Sedlak, and /or member(s) of their immediate families would be affected by such actions as members of a class /subclass consisting of more than one person, and where the effect upon Doyle, Sedlak, and /or the immediate family member(s) would be to the exact same degree as all other members of the class /subclass. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 Dovle /Sedlak, 97 -588 July 8, 1997 Page 5 Pa. Code §13.2(h 1. The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- (1806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, c Vincent opko Chief Counsel