Loading...
HomeMy WebLinkAbout02-545 HowatJohn J. Whelan, Esquire The James V. Catania Building 520 West MacDade Blvd. Milmont Park, PA 19033 Re: Conflict; Public Official /Employee; Borough; Council Members; Voting; Settlement of Claim; Complainant; Former Campaign Manager; Friend. Dear Mr. Whelan: ADVICE OF COUNSEL April 3, 2002 02 -545 This responds to your letter of March 4, 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 newly - elected borough council members with regard to voting to settle a claim against the borough when: (1) the complainant, a former borough employee, served as their campaign manager in the past election; and (2) one such council member, prior to being elected, accompanied the complainant as a friend to a related mediation conference. Facts: As Solicitor for Eddystone Borough ( "Borough "), you have been authorized by Borough Council Members Karen Reeves ( "Reeves "), Albert Albaugh ( "Albaugh "), and Robert Howat ( "Howat ") to seek an advisory on their behalf. You have submitted facts which may be fairly summarized as follows. In 2001, a Borough employee named Joan Healy ( "Healy ") resigned from her position as Crossing Guard and Turnkey (Police Matron) and indicated that she was being harassed by the Borough Mayor. The Borough Mayor vehemently denied these allegations. Healy filed a complaint with the Equal Employment Opportunity Commission ( "EEOC "), alleging harassment at the workplace and requesting lost wages. A mediation conference was held at the EEOC Philadelphia District Office, at which conference Howat appeared with Healy as Healy's friend. Settlement discussions occurred in 2001, but the Borough Council as it was then constituted voted against settling Healy's claim. Whelan/ Reeves Albauqh Howat 02 -545 April 3, 2002 Page 2 During the 2001 election, Reeves, Albaugh, and Howat successfully ran for Borough Council. Healy served as Campaign Manager for Reeves, Albaugh, and Howat and campaigned aggressively against other sitting Council members. When the new Council took office in January 2002, the issue concerning settlement of the Healy claim was again brought to the forefront. A few Council Members challenged the new Council Members' ability to authorize a settlement of the Healy claim based upon an alleged conflict of interest and the new Council Members' personal involvement with Healy during the 2001 election campaign. In particular, a concern arose as to Howat's potential vote to settle the Healy claim given his attendance at the aforesaid EEOC mediation conference. The Borough's insurance policy has a Consent to Settle provision. The Borough's insurance carrier cannot settle the Healy claim unless Borough Council authorizes the settlement. You ask whether, pursuant to the Ethics Act, Reeves, Albaugh, and Howat may vote with regard to settling the Healy claim under the above described circumstances. 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 Borough Council Members, Reeves, Albaugh, and Howat are public officials subject to the provisions of the Ethics 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 pertaining to Section 1103(a) 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 Whelan/ Reeves Albaugh Howat 02 -545 April 3, 2002 Page 3 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. Thus, pursuant to Section 1103(a) of the Ethics Act, the requisite elements for establishing a conflict of interest under the Ethics Act are: (1) the public official's /public employee's use of the authority of public office /employment or confidential information received by holding such public position, for (2) 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. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: §1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). Section 11030) 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 Whelan/ Reeves Albauqh Howat 02 -545 April 3, 2002 Page 4 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. § 11030). In applying the above provisions of the Ethics Act to the instant matter, based upon the submitted facts and conditioned upon the assumptions that: (1) participation as to settlement of the Healy claim would not result in any private pecuniary benefit to Reeves, Albaugh, or Howat, any member(s) of their immediate families, or any business(es) with which they or member(s) of their immediate families are associated; and (2) no improper understandings would exist in contravention of Sections 1103(b) or 1103(c) of the Ethics Act, the necessary conclusion is that Reeves, Albaugh, and Howat would not be prohibited by the Ethics Act from voting with regard to the settlement of the Healy claim. Cf. Wolfgang Opinion 89 -028. 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 or case law pertaining to bias. Conclusion: As Council Members of Eddystone Borough, Karen Reeves ( "Reeves "), Albert Albaugh ( "Albaugh ") and Robert Howat ( "Howat ") are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Reeves, Albaugh, and Howat would not be prohibited by the Ethics Act from voting with regard to the settlement of a claim against the Borough by Joan Healy ( "Healy "), a former Borough employee and former Campaign Manager for Reeves, Albaugh, and Howat in the 2001 election, based upon the submitted facts and conditioned upon the assumptions that: (1) participation as to settlement of the Healy claim would not result in any private pecuniary benefit to Reeves, Albaugh, or Howat, any member(s) of their immediate families, or any business(es) with which they or member(s) of their immediate families are associated; and (2) no improper understandings would exist in contravention of Sections 1103(b) or 1103(c) of the Ethics Act. 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. Whelan/ Reeves Albauqh Howat 02 -545 April 3, 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