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HomeMy WebLinkAbout02-577 BybelPaul M. Yatron, Esquire Mogel, Speidel, Bobb & Kershner 520 Walnut Street P.O. Box 8581 Reading, PA 19603 -8581 Dear Mr. Yatron: ADVICE OF COUNSEL July 22, 2002 02 -577 Re: Conflict; Public Official /Employee; Coroner; Use of Authority of Office; Hiring: Immediate Family; Daughter; Chief Deputy Coroner. This responds to your letter of June 14, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a county coroner with regard to hiring his daughter as chief deputy coroner. Facts: You seek an advisory from the State Ethics Commission on behalf of Dr. Nicholas Bybel ( "Bybel "), the Coroner of Berks County. You have submitted facts which may be fairly summarized as follows. In January 2002 Bybel took office as Coroner of Berks County ( "County "), a Third Class County. Bybel would like to hire his daughter, Gretchen Bybel, M.D., as Chief Deputy Coroner. You state that Bybel's daughter is a medical doctor duly licensed in the Commonwealth of Pennsylvania and is a graduate of the Coroners Education course administered by the Office of Attorney General of Pennsylvania. You state that Bybel's statutory authority with regard to the hiring and selection of employees is governed by Sections 1231 and 1620 of the County Code. You further state that while those sections grant to the elected Coroner broad discretion in selecting his deputies, no one may be officially hired nor may any compensation be set without the approval of the County Salary Board. The County Salary Board consists of the three County Commissioners, the County Controller, and for purposes of hiring deputies for the County Coroner, Bybel as Coroner. You contend that the final decision on hiring belongs to the Salary Board, and not to Bybel individually. Based upon the foregoing facts and argument, you ask whether Bybel would have a conflict of interest under the Ethics Act with regard to the hiring of his daughter as Chief Deputy Coroner. Discussion: It is initially noted that pursuant to Sections 1107(10) and (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 Yatron-Bybel, 02 -577 July 22, 2002 Page 2 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 Coroner of Berks County, Bybel is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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(a), (j). The following terms pertaining to conflict of interest 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 Yatron-Bybel, 02 -577 July 22, 2002 Page 3 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. 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. 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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or Yatron-Bybel, 02 -577 July 22, 2002 Page 4 arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. It is administratively noted that Sections 1231, 1620, 1623, and 1625 of the County Code provide in pertinent part as follows: § 1231. Deputies The coroner may appoint one or more deputies to act in his place and stead, as he may deem proper and necessary. Such deputy or deputies shall have the same powers as the coroner. § 1620. Salaries and compensation The salaries and compensation of county officers shall be as now or hereafter fixed by law. The salaries and compensation of all appointed officers and employes who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes.. . § 1623. Number and compensation of officers, deputies, assistants, clerks and employes The board, subject to limitations imposed by law, shall fix the compensation of all appointed county officers, and the number and compensation of all deputies, assistants, clerks and other persons whose compensation is paid out of the county treasury .. . § 1625. Procedure and action of board Yatron-Bybel, 02 -577 July 22, 2002 Page 5 (a) Except as herein otherwise provided, whenever the board shall consider the number or salaries of the deputies or other employes of any county officer or agency, such officer or the executive head of such agency shall sit as a member of the board, as long as any matter affecting his office or agency is under consideration and no longer. 16 P.S. §§ 1231, 1620, 1623, 1625(a). In applying the above rovisions of the Ethics Act to the instant matter, you are advised that Section 1103(a) of the Ethics Act would prohibit Bybel from hiring his daughter as Chief Deputy Coroner and /or participating as a member of the County Salary Board in setting her salary, because such actions would constitute uses of the authority of his public office for the private pecuniary benefit of a member of his immediate family. See, Confidential Opinion, 02 -004; Holvey, Orders 1039, 1039 -2. The use of authority of office encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order 809. Per the above cited sections of the County Code, it is Bybel's authority of office as Coroner to appoint deputy coroners and to sit as a member of the County Salary Board when that Board sets the number or salaries of Bybel's deputies or other employees. Thus, the authority of Bybel's office as County Coroner is defined to include authority as to the appointment and setting of the salary of the Chief Deputy Coroner. The use of that authority of office to hire Bybel's own daughter, and /or to set her salary, would result in a private pecuniary benefit to the daughter consisting of the salary and benefits incident to the position. Thus, all of the elements for a conflict of interest under Section 1103(a) of the Ethics Act would be established. The submitted facts do not indicate whether there is a pre- existing mechanism in place for delegation of the County Coroner's authority in the event of a conflict. You are advised that if there is no pre - existing conflict mechanism in place specifying how and by whom Bybel's authority is to be exercised as to the hiring of his daughter, Bybel's delegation of such authority to a subordinate would itself constitute a use of authority of office in contravention of Section 1103(a) of the Ethics Act. Confidential Opinion, 02- 004. Having noted the above under Section 1103(a), you are further advised that the proposed hiring of Bybel's daughter as Chief Deputy Coroner would involve contracting that would be subject to Section 1103(f) of the Ethics Act, to the extent the contract would be valued at $500 or more. Assuming that Section 1103(f) would apply, even if the requirements for an open and public contracting process would be satisfied, the hiring of Bybel's daughter would necessarily result in the transgression of Section 1103(f) of the Ethics Act. Section 1103(f) would require that Bybel not have any supervisory or overall responsibility as to the implementation or administration of his daughters contract with the County. However, it is clear from the above -cited provisions of the County Code that Bybel would inherently have such supervisory or overall responsibility as to the Chief Deputy Coroner. 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. Conclusion: As Coroner of Berks County ( "County "), Dr. Nicholas Bybel ("Bybel") 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. Bybel's daughter is a member of his immediate family. Pursuant to Section 1103(a of the Ethics Act, Bybel would be prohibited from hiring his daughter as Chief Deputy Coroner and /or participating as a Yatron-Bybel, 02 -577 July 22, 2002 Page 6 member of the County Salary Board in setting her salary. If there is no pre- existing conflict mechanism in place specifying how and by whom Bybel's authority is to be exercised as to the hiring of his daughter, Bybel's delegation of such authority to a subordinate would itself constitute a use of authority of office in contravention of Section 1103(a) of the Ethics Act. Assuming that Section 1103(f) would apply, the hiring of Bybel's daughter would necessarily result in the transgression of Section 1103(f) of the Ethics Act where Bybel would inherently have supervisory or overall responsibility as to the individual in such position. 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 § 13.2(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