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HomeMy WebLinkAbout02-580 Gavlock (2)Craig P. Miller, Esq., P.C. 138 East Water Street Lock Haven, PA 17745 Dear Mr. Miller: ADVICE OF COUNSEL July 31, 2002 02 -580 Re: Conflict; Borough Council Member; Borough Employee; Immediate Family Member; Spouse; Vote; Budget. This responds to your letters of May 17, 2002, June 24, 2002, and June 28, 2002, 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. 71 et seq., imposes any prohibition or restrictions upon borough council members who are husband and wife when one of them is employed by the borough as a licensed water operator for the borough water department. Facts: As Solicitor for the Borough of Renovo ( "Borough "), you seek an advisory on behalf of Borough Council Members Mark Gavlock and Rhonda Gavlock based upon the following submitted facts. Mark Gavlock and Rhonda Gavlock are husband and wife. The Gavlocks were both elected to Borough Council in the November 2001 municipal election. The Borough has a population of approximately 1,500. On May 13, 2002, Borough Council hired Mark Gavlock to work as a licensed water operator for the Borough Water Department. You state that although Mark Gavlock previously served as a Borough employee, prior to his most recent hiring, he had not held a position of employment with the Borough for approximately one year. You further state that neither Mark Gavlock nor Rhonda Gavlock voted on the hiring of Mark Gavlock to the position of licensed water operator. You pose the following specific questions. 1. Whether the Ethics Act would impose any restrictions upon Mark Gavlock and /or Rhonda Gavlock given Mark Gavlock's status as both a Borough Miller /Gavlock 02 -580 July31, 2002 Page 2 Council Member and as a licensed water operator for the Borough Water Department; 2. Whether the Gavlocks would be required to abstain from voting on any and all matters pertaining to the Water Department; and 3. Whether the Gavlocks would be required to abstain from voting on any matter impacting the Borough budget, given that both the Water Department and Mark Gavlock's salary would be considered in the budget process. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Borough Council Members, Mark Gavlock and Rhonda Gavlock are both public officials subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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 Miller /Gavlock 02 -580 July31, 2002 Page 3 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), 0). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. sister. "Immediate family." A parent, spouse, child, brother or 65 Pa.C.S. § 1102. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to erform the functions of a given position. See, Juliante, Order 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Having set forth the pertinent provisions of the Ethics Act, your specific questions shall now be addressed. In response to your first and second questions, you are advised as follows. 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Given that the Gavlocks are husband and wife, Mark Gavlock is a member of Rhonda Gavlock's immediate family and Rhonda Gavlock is a member of Mark Gavlock's immediate Miller /Gavlock 02 -580 July31, 2002 Page 4 family. Generally, the Gavlocks, as Borough Council Members, would have conflicts of interest in matters that would financially impact themselves or each other. In each instance of a conflict, the Gavlocks would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The requirement for abstention in the event of a conflict would extend not only to voting, but also to other uses of authority of office, such as discussing, conferring with others, or lobbying for a particular result. See, Juliante, supra. With regard to Mark Gavlock's employment by the Borough Water Department, you are advised as follows. Matters pertaining to the Water Department that would not involve a prohibited private pecuniary benefit would not present a conflict of interest for the Gavlocks. Both Mark Gavlock and Rhonda Gavlock would generally have conflicts of interest in matters before Borough Council that would financially impact Mark Gavlock as a Borough employee. However, the statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion," which could apply in some instances. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. As for the class /subclass exclusion, in order for the exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree' (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 01 -007. The first criterion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. Kablack, Opinion 02 -003. The second criterion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Id. A proper analysis of the applicability of the class /subclass exclusion in any given instance requires a careful examination of the circumstances, on a case -by -case basis. In considering the instant matter, the submitted facts do not reveal whether there are other similarly situated licensed water operators employed by the Borough that, together with Mark Gavlock, would constitute an appropriate subclass. Accordingly, as to this particular point, this Advice is necessarily limited to advising you that the Gavlocks would not have a conflict of interest in matters before the Borough that: (1) would have a de minimis economic impact upon Mark Gavlock; or (2) would financially impact a class /subclass including Mark Gavlock, conditioned upon the assumption that Mark Gavlock would be reasonably affected to the same degree by the proposed action as the other members of such class /subclass. You are further advised that matters before Borough Council involving individuals who supervise Mark Gavlock in his capacity as a Borough employee may present a conflict of interest for the Gavlocks, depending upon the particular circumstances. Further advice may be requested from the State Ethics Commission in the event such a potential conflict arises. Miller /Gavlock 02 -580 July31, 2002 Page 5 In response to your third inquiry, as to whether the Gavlocks would be required to abstain from voting on any matter impacting the Borough budget given that both the Water Department and Mark Gavlock's salary would be considered in the budget process, you are advised as follows. Portions of the budget or budget process pertaining to the Water Department generally would not present a conflict of interest for the Gavlocks absent some private pecuniary benefit to Mark Gavlock. If the funding for Mark Gavlock's salary would be a separate line item on the budget, the Gavlocks would have a conflict as to that particular line item. However, if the funding for Mark Gavlock's salary would be included within a line item for a class /subclass and he and the other members of the class /subclass would receive the same financial benefits thereby, the Gavlocks would not have a conflict as to that line item and could participate and vote on it. See, Mattie, Advice 91 -508, addressing similar questions in the context of contract negotiations and the budget process. 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. Conclusion: As Borough Council Members for the Borough of Renovo ( "Borough "), Mark Gavlock and Rhonda Gavlock (husband and wife) are public officials subject to the provisions of the Ethics Act. The Gavlocks would generally have conflicts of interest in matters before Borough Council that would financially impact themselves or each other. In each instance of a conflict, the Gavlocks would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Although Mark Gavlock is employed by the Borough Water Department, matters pertaining to the Water Department that would not involve a prohibited private pecuniary benefit would not present a conflict of interest for the Gavlocks. The Gavlocks would generally have conflicts of interest in matters before Borough Council that would financially impact Mark Gavlock as a Borough employee. The Gavlocks would not have a conflict of interest in matters before the Borough that: (1) would have a de minimis economic impact upon Mark Gavlock; or (2) would financially impact a class /subclass including Mark Gavlock conditioned upon the assumption that Mark Gavlock would be reasonably affected to the same degree by the proposed action as the other members of such class /subclass. If the funding for Mark Gavlock's salary would be a separate line item on the budget, the Gavlocks would have a conflict as to that particular line item. If the funding for Mark Gavlock's salary would be included within a line item for a class /subclass and he and the other members of the class /subclass would receive the same financial benefits thereby, the Gavlocks would not have a conflict as to that line item and could participate and vote on it. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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, 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 Miller /Gavlock 02 -580 July31, 2002 Page 6 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