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HomeMy WebLinkAbout98-567 VezzaCalvin J. Webb, II, Esquire Smorto, Persio, Webb & McGill 129 S. Center St., P.O. Box 239 Ebensburg, PA 15931 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1998 98 -567 Re: Conflict; Public Official /Employee; Immediate Family; Budget; Payroll; Son -in -law; Step - grandson; Nephew; Aunt; Brother; Brother -in -law; Spouse; Stepdaughter. Dear Mr. Webb: This responds to your letters of April 14, May 12, and June 9, 1998 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 borough council members regarding participating in financial matters, when various relatives are employed by the borough. Facts: As the Solicitor for the Borough of Patton, Cambria County, you have been authorized to seek an Advice of Counsel by the following individuals: Kenneth Bailey, a Council Member, has a son -in -law (Phillip Larkin) who is a water /sewer plant operator. Linda Conrad, Assistant Borough Secretary and Park Commission Secretary, is married to Jack Conrad, a part-time Park Maintenance Assistant. Brian Woodley, Council President, is the nephew of Linda Conrad. Raymond Vezza, Park Commission President, has a stepdaughter (Kelly. Patrick), who is the Park and Pool Manager, as well as a step - grandson (Aaron Kelly), who is employed as a summer worker for the park and pool. Richard Miller, Park Supervisor, Borough Street Crew, and Water and Sewer Plant Assistant, is the brother -in -law of James Blake, a Council Member. James Larkin, a Council member; has a brother who is a water /sewer plant operator. As Solicitor for the Borough, you seek clarification of action by individual Council members concerning family relationships. You request an advisory of the State Ethics Commission on potential conflicts of interest regarding the above individuals, including but not limited to the following issues: Webb, 98 -567 June 15, 1998 Page 2 1) Voting on the budget, which addresses relatives' payroll; 2) Voting or motioning on financial matters and abstaining from issues related to a relative's payroll; 3) Participating in a discussion if an individual is required to abstain from voting or motioning; and 4) Being present during a discussion if an individual may not participate in discussion. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(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. § 5407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Council members for Patton Borough, Woodley, Bailey, and Larkin are public officials as that term is defined in the Public Official. and Employee Ethics Law ( "Ethics Law "), and hence they are subject to the provisions of that law. For purposes of this Advice, it will be assumed that Conrad and Miller are public employees and that Vezza is either a public official or employee. 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. 65 P.S. §403(a). The following terms that pertain to Section 3(a) 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 Webb 98 -567 June 15, 1998 Page 3 65 P.S. §402. 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. 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. 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. 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. Before answering the questions you have posed, a general statement will be made of the Ethics Law as it applies to public officials who take action in financial matters involving relatives. If the use of office by the public official does not involve a financial matter as to an immediate family member, that is, a parent, spouse, child, brother or sister, Section 3(a) of the Ethics Law would not prohibit the public official from taking such action. Baker Opinion 89 -016. Webb, 98 -567 June 15, 1998 Page 4 If the use of office by the public official involves a financial matter as to an immediate family member, Section 3(a) of the Ethics Law would prohibit the public official from taking such action. Davis, Opinion 89 -012. A conflict of interest would exist under Section 3(a) of the Ethics Law because the public official would be using the authority of office for the private pecuniary benefit of an immediate family member. In each instance of conflict, the public official would be required to abstain and to satisfy the disclosure requirements of Section 3(j) set forth above. There is an exception to each one of the two general rules noted above. First, in a situation of conflict as to an immediate family member, the class /subclass exception to the definition of conflict of interest might apply. If the immediate family member would be affected to the same degree as 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, the action is excluded from the definition of conflict. Thus, Section 3(a) of the Ethics Law would not restrict the proposed action by the public official provided the immediate family member is in a class /sub -class consisting of more than one person and would be affected by the action to the exact same degree as all other members of the class /sub- class. Davis Opinion 89 -012. The second exception involves an in -law who would not be within the definition of immediate family. The State Ethics Commission has, in one instance, found a violation of Section 3(a) where the public official used the authority of office to create a new employment position and to appoint his son -in -law to same. The Commission found that the son -in -law's salary increase resulted in a direct private pecuniary benefit to the public official's daughter — who was a member of his immediate family — through the deposit of such monies in a joint account where they were used to satisfy joint obligations for which the daughter was legally liable. Pulice, Order No. 1035, reversed Pulice v. State Ethics Commission, Slip Opinion filed in the Commonwealth Court of Pennsylvania at Docket No. 0875 C.D. 1997 on June 3, 1998, case still pending. Your specific questions relate to public officials being present, participating, making motions or voting on financial matters or the budget which includes the payroll of various relatives. Since such uses of authority of office, that is, participating, making motions or voting, may be only taken by Council members, the conduct of Bailey, Woodley and Larkin need only be considered. Conversely, because Conrad, Vezza and Miller are not Council members, they cannot take such action and hence this Advice will not address their conduct. • For Woodley, the only relative working in the Borough is his aunt. Since an aunt is not within the definition of immediate family under the Ethics Law, Woodley would not have a conflict under Section 3(a) of the Ethics Law as to financial matters or the budget. As to Bailey, his son -in -law is a Borough employee. Assuming that a Pulice factual situation does not exist, Bailey would not have a conflict as to financial matters under Section 3(a) of the Ethics Law because an in -law is not within the definition of immediate family. For Larkin, his brother is a Borough operator for the water /sewer plant. Because a brother is within the definition of immediate family, Larkin would have a conflict as to matters involving a financial or pecuniary benefit to his brother. The conflict would prohibit using the authority of office which has been determined by the Commission to include participation, making motions or voting. Juliante, Order 809. Merely being present without taking action does not constitute a use of authority of office. See Webb, 98 -567 June 15, 1998 Page 5 McGuire and Marchitello v. State Ethics Commission, 657 A2d. 1346 (1995). Examples of conflict by Larkin would be situations where his brother would receive some type of individualized financial gain such as a new position, meritorious raise, etc. However, if Larkin's brother is part of a bargaining unit whereby Larkin's brother and the other members of the unit would receive the same financial benefits, Larkin could not participate as to the negotiations but could vote on the final ratification of the contract as well as the budget which would include that contract. Van Rensler Opinion No. 90- 017. Lastly, 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 Borough Code. Conclusion: As Council members for Patton Borough, Woodley, Bailey, and Larkin are public officials as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence they are subject to the provisions of that law. Council members who have relatives working for the Borough do not have a conflict under Section 3(a) as to those relatives who are not members of the immediate family as that term is defined under the Ethics Law, subject to the qualification noted above. The Council member whose immediate family member is employed by the Borough, has a conflict in financial matters as to that immediate family member, must not participate and must observe the disclosure requirements of Section 3(j) of the Ethics Law, unless the class /subclass exclusion outlined above would be applicable. 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 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, intent J. opko Chief Counsel irk