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HomeMy WebLinkAbout02-003 KablackOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: May 2, 2002 DATE MAILED: May 16, 2002 02 -003 Wayne A. Kablack, Esquire Simpson, Kablack & Bell 834 Philadelphia Street Indiana, PA 15701 Re: Conflict; Public Official /Employee; Borough Council Member; Landlord; Registration Fees; Inspection Fees; Ordinances; Amendments; Class /Subclass Exclusion. Dear Mr. Kablack: This Opinion is issued in response to your advisory request dated March 5, 2002. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibition or restrictions upon a borough councilman who, in his private capacity, is a landlord with numerous apartments in the borough, with regard to proposed amendments to borough ordinances requiring landlords to register their tenants and to pay fees for registrations and inspections. II. FACTUAL BASIS FOR DETERMINATION: As the solicitor for Indiana Borough ( "Borough ") in Indiana County, Pennsylvania, you request an advisory from this Commission on behalf of Borough Councilman Ross Bricklemyer ( "Bricklemyer "). You have submitted facts which may be fairly summarized as follows. In his private capacity, Bricklemyer is a landlord who owns numerous apartments Kablack 02 -003 May 16, 2002 Page 2 located in the Borough. Borough ordinances currently require landlords to register their tenants and pay fees for registrations and inspections. Recently, Borough Council discussed a proposed ordinance involving fees paid by landlords for inspections of their property as well as reporting fees. The properties that would be inspected under the proposed ordinance would include all buildings -- commercial, apartments, and dormitories located in the Borough - -with the exception of owner occupied properties. The inspection fee would differ depending upon the type of property involved. You state that depending upon the fee structure utilized, Bricklemyer may pay more or less than other types of landlords. However, you state that he would be treated the same as other landlords having apartments. The number of apartment units in Indiana Borough that would be subject to the proposed ordinance is approximately 3,280. Questions have been raised regarding the propriety of Bricklemyer being involved in the debate or vote on this issue. Bricklemyer would like an opinion as to: (1) Whether he has the right to discuss issues involving these ordinances; and (2) Whether he has the right to vote on these ordinances. By letter dated April 15, 2002, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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, this 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. In this instance, the submitted facts are ambiguous as to whether the existing Borough ordinances would actually be "amended" by the proposed ordinance. This Opinion shall consider your questions based upon the assumption that the existing ordinances shall be so amended, but you are advised that our analysis would not vary depending upon such procedural technicalities. This Opinion would apply as to matter(s) before the Borough Council regarding the existing ordinances, the proposed ordinance, or amendment(s) to same. 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, this 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 an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Borough Councilman, Bricklemyer is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: Kablack 02 -003 May 16, 2002 Page 3 § 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. 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 Kablack 02 -003 May 16, 2002 Page 4 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) 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. Per the submitted facts, Borough Council is considering amending the Borough ordinances which set registration fees and inspection fees for, inter alia, apartments located in the Borough. Borough Councilman Bricklemyer is, in his private capacity, a landlord who owns numerous apartments in the Borough, such that amending the ordinances to change these fees would financially impact Bricklemyer. Generally, Bricklemyer would have a conflict of interest as to matters before Borough Council that would financially impact him. However, the statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. There is no indication in the submitted facts as to any potential applicability of this exclusion, and so we shall not consider it further. As for the class /subclass exclusion, in order for the exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree' (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 01 -007. The submitted fact that Bricklemyer could pay more or less than other types of landlords but would be treated the same as other landlords having apartments suggests the possible applicability of the class /subclass exclusion. The proper application of the class /subclass exclusion hinges upon the correct identification of the subclass, as to the first criterion, and the correct interpretation of the phrase, "to the same degree," as to the second criterion. It is not a simple matter to apply these criteria in a legally correct, uniform fashion that accomplishes the purposes of the Ethics Act in every possible scenario. We have identified the following concerns. In considering the first criterion, it would appear from the broad statutory language that Kablack 02 -003 May 16, 2002 Page 5 a "subclass" may be any sort of group. Such broad language may create the potential for an attempt to manipulate the identification of the subclass in order to reach the result of no conflict. However, "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly," and ". . . the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S. §§ 1921, 1922. The Legislature clearly did not intend for subclasses to be defined in absurd or unreasonable ways. Rather, we determine that the Legislature intended for this criterion to be satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. In considering the second criterion, neither the Ethics Act, the related regulations at 51 Pa. Code, nor the Statutory Construction Act (see, 1 Pa.C.S. § 1991) define what is meant by the phrase "to the same degree." If we construe the phrase according to rules of grammar and "common and approved usage" (see, 1 Pa.C.S. § 1903(a)), we may arrive at a restrictive construction which could require that the impact upon the members of the class /subclass be D precisely identical. See, .q., BLACK'S LAW DICTIONARY 1341 (7 h ed. 1999); BLACK'S LAW ICTIONARY 381, 1203 (5"' e ed. 1979); NEW WEBSTER'S DICTIONARY AND THESAURUS OF THE ENGLISH LANGUAGE 252, 882 (1993). Again, the Legislature clearly did not intend such a result, which would not only be absurd and unreasonable, but would also render the exclusion practically impossible to apply. See, 1 Pa.C.S. §1921, 1922. We determine that the Legislature intended for this criterion to be satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. To illustrate the above, we shall consider two hypothetical examples. For the first hypothetical, we shall assume that a Borough Councilman owns three hundred apartment units in the Borough and that all of the other landlords own between one to fifty apartment units each. We shall further assume that the Borough is considering an across - the -board 50% reduction in the fees pertaining to apartment units. The class /subclass exclusion will necessarily fail to apply in this hypothetical example. In applying the first criterion, no other landlord has enough apartments units to enable the delineation of a subclass that will include the Borough Councilman, other than a subclass of all landlords owning apartment units in the Borough. In applying the second criterion, even though all landlords will pay the same reduced fee per unit, the Borough Councilman with three hundred apartment units will clearly not be affected by the fee reduction "to the same degree" as all of the other landlords. The financial impact upon the Borough Councilman will be many times greater than it will be upon any other landlord. For the second hypothetical, we shall assume the same facts with the exception that we shall assume there is one additional landlord who owns two hundred ninety -nine apartment units in the Borough. The class /subclass exclusion should apply in this hypothetical example. The Borough Councilman and this additional landlord are obviously similarly situated. They should, in our view, be considered as constituting a subclass. They should, in our view, be considered to be affected to the same degree by the fee reduction. Even though the Borough Councilman would benefit from the fee reduction for one more apartment unit than the other landlord in the subclass, it would be absurd, unreasonable, and contrary to the legislative intent to conclude that the Borough Councilman would not be affected "to the same degree" as the landlord owning one less apartment. The above approach is consistent with prior Commission precedents. In Esposito, Order 832, this Commission held that the class /subclass exclusion applied when the Respondent public employee negotiated a union contract that covered, among others, a group of employees including the Respondent's brother who were designated "Superintendents," with the brother receiving the "same" salary package as the other Superintendents. The salary package consisted of a 5% wage increase for each year of the Kablack 02 -003 May 16, 2002 Page 6 contract, an additional flat yearly increase of $2,000, and an additional annual payroll increment of $300 per year. Although a percentage calculation may not always result in members of a subclass being reasonably affected to the same degree, it did under the unique circumstances of the Esposito case. In Lemon yel, Order 1038, this Commission similarly found the class /subclass exclusion to be applicable. In that case, the Respondent as secretary /treasurer for an authority handled certain interest allocation assignments relative to the authority's pension plan. Various allocation methods were available. Under an "equal dollar" method, each employee would receive the exact same dollar amount. Under an "equal percentage" method, employees having higher balances in their accounts would receive a greater share of the excess interest income. Respondent chose the equal dollar method of allocating the income which resulted in her receiving a larger portion of the excess interest than she would have received under the equal percentage method. However, for each of the years under review, at least one other employee was similarly benefited by the Respondent's choice of allocation method. It is clear from the above hypothetical examples and actual rulings of this Commission that a proper analysis of the applicability of the class /subclass exclusion in any given instance requires a careful examination of the circumstances, on a case -by -case basis. In considering the instant matter, the submitted facts do not reveal the number of apartment units owned by each of the landlords which own apartment units in the Borough. Therefore, we are not able to identify an appropriate subclass or to determine whether Bricklemyer would be affected "to the same degree" as the other members of the subclass. Accordingly, our response to your inquiry is necessarily limited to advising you that Bricklemyer would not have a conflict of interest in discussing or voting on the proposed amendments to the Borough ordinances requiring landlords to register their tenants and to pay fees for registrations and inspections conditioned upon the assumption that there would be at least one other landlord owning a sufficient number of apartments in the Borough so as to be similarly situated and reasonably affected to the same degree by the proposed action as Bricklemyer. 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. IV. CONCLUSION: A borough councilman 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. Generally, a borough councilman would have a conflict of interest as to matters before the borough council that would financially impact him. In order for the class /subclass exclusion in the Ethics Act's definition of "conflict' or "conflict of interest" to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" as the other members of the class /subclass. 65 Pa.C.S. § 1102. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. A borough councilman who, in his private capacity, is a landlord with numerous apartments in the borough, would not have a conflict of interest in discussing or voting on proposed Kablack 02 -003 May 16, 2002 Page 7 amendments to borough ordinances requiring landlords to register their tenants and to pay fees for registrations and inspections conditioned upon the assumption that there would be at least one other landlord owning a sufficient number of apartments in the borough so as to be similarly situated and reasonably affected to the same degree by the proposed action as the borough councilman. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Daneen E. Reese Chair