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Home My WebLink About92-590Mr. William R. Garlitz 705 Sixth Street Charleroi, PA 15022 Dear Mr. Garlitz: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 08-1 470 TELEPHONE (71 7) 783 -1610 ADVICE OF COUNSEL May 28, 1992 92 -590 Re: Conflict, Public Official /Employee, Borough Council Member, Contract Negotiations, Law Suit, Participation in Employee Contract Negotiations with Attorney Representing Opposing Party in Private Law Suit. This responds to your letter of April 22, 1992, 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 borough council member with regard to engaging in employee contract negotiations with an attorney who represents the opposing party in a private law suit against the borough council member. Facts: As a Borough Council Member for Charleroi Borough, Pennsylvania, you request an advisory from the State Ethics Commission. You generally state that a "situation" occurred on April 14, 1992, at the Charleroi Borough Council meeting, and that you have some questions concerning the ethical and legal actions which occurred. You request a ruling on the following questions: 1. Is it ethically and legally right for a borough office worker to give out copies of checks and check stubs (which contain elected officials' social security numbers) to the general public; and 2. Is it proper for you as a borough council member to engage in employee contract negotiations with an attorney who represents the opposing party in a private law suit against you involving a car accident You seek an expedited advisory so that'_ d�fnc t hte any laws. William R. Garlitz May 28, 1992 Page 2 Discussion: Two points must initially be noted. First, the facts which you have submitted reference actions which occurred at an April 14, 1992, Borough Council meeting, which would suggest that your request for an advisory may encompass some past .action. On the other :hand, you state that are seeking answers to your questions as soon as possible so you do not violate any laws, which would suggest that your advisory regards future conduct. Your request for an advisory may only be addressed insofar as it regards your prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that 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 Law violatiois a person . who is subject to the Ethics Law. Secondly, your request for an advisory may only be addressed within the parameters of the Ethics Law. This Commission does not have the express statutory jurisdiction to interpret other laws. If another provision of law somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See, Bigler, Opinion 85 -020; accord, Confidential Opinion 91 -001 at 4 In this case,: however no laws other than the Ethics Law shall be considered. As a Borough Council Member for Charleroi Borough, Pennsylvania, you are a public official as that term, is defined under the Ethics Law, and hence you are 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 William R. Garlitz May 28, 1992 Page 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 Blass 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. 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 recGrding the minutes - of the meeting at which the vote- is taken, provided that whenever a governing body would be unable to take action on`a matter William R. Garlitz May 28, 1992 Page 4 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 A 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 applying the above provisions of the Ethics Law to the questions which you have posed, your first specific inquiry may not be addressed in that the proposed conduct is not encompassed within the parameters of the Ethics Law. " Turning to . your .second . specific inquiry, in which you _ ask whether it would be proper for you as a Charleroi Borough`Council Member to engage in employee contract negotiations with an attorney who represents the opposing party in a private lawsuit against you involving a car accident, 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(a) would not appear to have any applicability to the facts which you submitted, and thus you would not have a conflict of interest in engaging in the employee contract negotiations with the attorney who represents the opposing party in the private law suit filed against you. However, this Advice is expressly conditioned upon the assumption that there would be no improper understandings which would transgress Sections 3(b) and /or 3(c) of the Ethics Law as set forth above. The restrictions of Sections 3(1} and 3(c) of the Ethics Law must be observed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, William R. Garlitz May 28, 1992 Page 5 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 Borough Code. Conclusion: As a Borough Council Member for Charleroi Borough, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit or restrict you as a Charleroi Borough Council Member from engaging in employee contract negotiations with an attorney who represents the opposing party in a private law suit filed against you, conditioned upon the assumption that there would be no improper understandings which would transgress Sections 3(b) and /or 3(c) of the Ethics Law. The restrictions 'of Sections 3(b) and 3(c) of the Ethics Law must be observed. 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal 'Opinion from the Commission will be "issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Vincent J. Dopko Chief Counsel 'tY :44 t