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HomeMy WebLinkAbout97-510 BakerF. Walter Bloom, III, Esquire City Solicitor City of Oil City 207 Seneca Street PO Box B Oil City, PA 16301 Dear Mr. Bloom: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 24, 1997 97 -510 Re: Conflict, Public Official /Employee, City, Council Member, Accountant, Contract with Union for Accounting Services, Vote, City Budget. This responds to your letters of December 19 and December 24, 1996 in 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 City Council Member who performs accounting work for a union as to a vote on the City budget which establishes salaries and benefits for union members. Facts: As Solicitor for the City of Oil City, you request an advisory on behalf of City Council Member Richard Baker (Baker). The City of Oil City is a city of the third class which operates under the Council /Manager form of the Optional Charter Law. Baker is an elected Council Member and a self - employed accountant by profession. Baker recently entered into a contract with the IBEW Local 2279, a non- profit corporation, to perform accounting services including reconciliation of monthly bank statements, posting monthly financial activity, and preparing the Federal Income Tax Return. Baker does not perform any financial planning nor make any policy decisions for the Local IBEW. Baker essentially carries out administration accounting work. The IBEW Local 2279 is the duly certified bargaining unit for 48 non public safety employees of the City. An issue has arisen as to whether Baker's contract with the Local IBEW unit constitutes a conflict of interest with respect to any of his duties as a Council Member. You have advised Baker that he may not participate as a Council Member Bloom /Baker, 97 -510 January 24, 1997 Page 2 in the negotiation of the IBEW contract nor should he vote on the adoption of the proposed contract between the City and the Union covering the terms and conditions of employment of such employees. Another issue is whether Baker has a conflict as to voting upon the general budget of the City which does not have any line items pertaining to the IBEW corporate entity but does, however, establish salaries, fringe benefits, and duties of the IBEW's members as defined by the bargaining contract as to which Baker did not participate. You have advised Baker that in your opinion he would not have a conflict to vote on the budget; however, Baker has directed you to obtain an advisory from the State Ethics Commission. Discussion: 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 a Council Member for the City of Oil City, Richard Baker (Baker) is a public official as that term is defined under the Ethics Law, and hence he is 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 Bloom /Baker, 97 -510 January 24, 1997 Page 3 to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: 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. If a conflict exists, 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 in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar Advice 91- 523 -5. Bloom /taker 97 -510 January 24, 1997 Page 4 In applying Section 3(a) of the Ethics Law to the instant matter, it is noted that the Commission in Woodrinq, Opinion 90 -001, held that where a public official /public employee who in a public position is in a superior position to a subordinate and the subordinate in another capacity is in the superior position, a conflict would exist: . you may apply for and participate in the benefits associated with the Program. However, we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development coordinator for the city. In particular, the potential exists, given the employer - employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable light than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi, Opinion 86 -007. Woodring, at 6. Similarly, in this case, Baker is a public official in a superior position to the subordinate city employees represented by the IBEW Local 2279 but in a private capacity the latter entity employs Baker to perform accounting services. Thus, Baker would have a conflict as to matters affecting the city employees represented by IBEW Local 2279, as noted in your letter. Regarding the propriety of Baker voting on the general budget, Baker would not be precluded from voting on the budget provided that such action on his part could not result in any pecuniary benefit (aside from what is provided in the negotiated bargaining contract as to which he did not participate) to the city employees. It is also assumed that there are no inappropriate understandings in contradiction to Sections 3(b) and 3(c) of the Ethics Law. 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 the respective municipal code. COnClusiO[t: As a Council Member for the City of Oil City, Richard Baker (Baker) is a public official subject to the provisions of the Ethics Law. Based upon the qualifications and limitations noted above, a city council member, who performs accounting services for a union whose membership is city employees, may vote on the general budget which includes salaries and benefits for city employees as per a bargaining contract as to which the councilmember did not participate. 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. Bloom/Baker, 97 -510 January 24, 1997 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. cerely, Vincent J. Dopko Chief Counsel