HomeMy WebLinkAbout01-527 EliscoJames W. Manolis, Esquire
City of New Castle
Office of the Solicitor
City Building
230 North Jefferson Street
New Castle, PA 16101
Dear Mr. Manolis:
ADVICE OF COUNSEL
March 15, 2001
01 -527
Re: Conflict; Public Official /Employee; City Council Member Or Council Member's
Spouse Employed By School District; School District Requesting Council to Vacate
Street to Construct New School; Conditional Use Application; Private Pecuniary
Benefit; Participate; Vote; Advice 00 -530; Opinion 00 -003.
This responds to your letter of February 16, 2001, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq. presents any prohibition or restrictions upon council members as to
participating in or voting upon a school district's request to vacate a street and alley to
construct a new high school and conditional use request to utilize property adjacent to the
existing school grounds for public school related purposes where: 1) one council member
is employed by the school district as an assistant principal; and 2) one council member's
wife is employed by the school district as a principal.
Facts: As Solicitor to the City of New Castle, you seek an advisory on behalf of
Mark Elisco ( "Elisco ") and Richard DeBlasio ( "DeBlasio "), members of the New Castle City
Council ( "City Council "). City Council is comprised of five members.
Elisco is employed by the New Castle Area School District ( "School District ") as an
assistant principal. DeBlasio's wife is also employed by the School District as a principal.
You state that neither Elisco nor DeBlasio's wife are protected by a collective bargaining
agreement; however, they are protected under the provisions of the Public School Code of
1949.
The School District has presented a petition to City Council requesting that an alley
and a street be vacated to permit the construction of a new high school. The School
District has also submitted an application for a conditional use to enable it to utilize
property adjacent to the existing school grounds for public school related purposes. You
state that the decision to vacate the alley and street and to approve or deny the conditional
use request will be made by a majority vote of City Council.
Manolis 01 -527
March 15, 2001
Page 2
Given the above facts, you ask whether Elisco and DeBlasio may participate in and
vote upon the School District's petition to vacate the alley and street for the construction of
a new high school, and conditional use request to utilize property adjacent to the existing
school grounds for public school related purposes.
Discussion: It is initially noted that ursuant 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 members of the New Castle City Council ( "City Council "), Mark Elisco ( "Elisco ")
and Richard DeBlasio ( "DeBlasio ") are public officials as that term is defined in the Ethics
Act, and hence Elisco and DeBlasio are subject to the provisions of that 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 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.
"Immediate family." A parent, spouse, child, brother or
sister.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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
Manolis 01 -527
March 15, 2001
Page 3
understanding that the vote, official action, or judgment 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 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 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 each instance of a conflict, Section 11030) 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(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.
Since the term "immediate family" is defined to include a parent, spouse, child,
brother or sister and since DeBlasio's wife is in one of the familial relationship delineated
above, Section 1103(a) of the Ethics Act would prohibit DeBlasio from participating in
actions of City Council that would result in a financial benefit to himself or his wife. Section
1103(a) of the Ethics Act would also prohibit Elisco from participating in actions of City
Council that would result in a financial benefit to himself.
Manolis 01 -527
March 15, 2001
Page 4
Having established the above principles, your question shall now be addressed.
Based upon the assumption that no financial gain would inure to Elisco or DeBlasio or a
member of their immediate families, Elisco and DeBlasio would not have a conflict as to
participating in and voting upon the School District's request to vacate the street and alley
for the construction of a new school, and conditional use request to utilize property
adjacent to the existing school grounds for public school related purposes.
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
respective municipal code.
Conclusion: As members of the New Castle City Council, Richard DeBlasio
"DeBlasio ") and Mark Elisco ( "Elisco ") are public officials subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq.
DeBlasio's wife who is employed as a principal by the New Castle Area School District
("School District ") is a member of DeBlasio's immediate family. Section 1103(a) of the
Ethics Act would prohibit DeBlasio from participating in actions of City Council that would
result in a financial benefit to himself or his wife. Section 1103(a) of the Ethics Act would
also prohibit Elisco, an assistant principal employed by the School District, from
participating in actions of City Council that would result in a financial benefit to himself.
Conditioned upon the express assumption that no financial gain would inure to
Elisco or DeBlasio or a member of their immediate families, Elisco and DeBlasio would not
have a conflict as to participating in and voting upon the School District's request to vacate
the street and alley for the construction of a new school, and conditional use request to
utilize property adjacent to the existing school grounds for public school related purposes.
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 §13.20. 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