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HomeMy WebLinkAbout22-508 Stapleford PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 28, 2022 To the Requester: Ms. Andrea L. Stapleford, Esquire 22-508 Dear Ms. Stapleford: This responds to your correspondence received January 14, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issues presented below: Issues: 1. Would an individual serving as the Mayor of the City of Warren (City), who is employed as a Vice President of the United Refining Company (URC), have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), with regard to voting on matters related to the installation of a roundabout in the City, when URC opposes the roundabout for safety-related concerns? Brief Answer: NO. The City Mayor would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters related to the installation of the roundabout opposed by URC where the submitted facts do not indicate that the City immediate family, or URC, which is a business with which the City Mayor is associated in his capacity as an officer/employee. 2. Would a Member of City Council, who is the son of the City Mayor, have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters related to the installation of the roundabout opposed by URC? Brief Answer: NO. The City Council Member would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters related to the installation of the roundabout opposed by URC where the submitted facts do not indicate that the City Stapleford, 22-508 January 28, 2022 Page 2 member of his immediate family, such as the City Mayor, or a business with which the City Council Member or a member of his immediate family is associated, such as URC. Facts: You request an advisory from the Commission on behalf of Mr. David Wortman and Mr. John Wortman. You have submitted facts, the material portion of which may be fairly summarized as follows: The City is located in Warren County, Pennsylvania. David Wortman was elected as City Mayor in November 2021, and he was sworn into office on January 3, 2022. The City Mayor votes on all matters before City Council. City Council. David Wortman is employed as a Vice President of URC, which has its headquarters located in the City. David Wortman is one of approximately 20 URC Vice Presidents. All URC employees, including the Vice Presidents, receive an annual bonus at the beginning of December. For several years, the City has been dealing with the question of whether to install a roundabout (i.e. URC, along with other businesses and individuals in the City, has opposed the roundabout. In 2018, David Wortman, as Vice President Supply and Transportation for URC, sent a letter to the Pennsylvania Department of The reasons -related and involved concerns with regard to: (1) the extreme difficulty in navigating a tractor trailer in a high traffic roundabout; (2) a lack of passenger vehicle awareness with roundabouts while entering and exiting with tractor trailers; (3) a lack of controls for pedestrians to enter and exit a roundabout safely; and (4) the difficulty of commercial drivers to see well enough on the passenger side while moving through a roundabout. You state that according to David Wortman, URC did not perform an analysis on any financial impact which the roundabout may have on URC. Despite opposition from some businesses and individuals in the City, City Council voted to approve construction of the roundabout. Planning for the roundabout project has progressed, but the roundabout has not yet been constructed. With a newly elected and seated City Council, the roundabout is once again an issue before City Council. Based upon the above submitted facts, you pose the following questions: 1. Would David Wortman have a conflict of interest with regard to voting on matters related to the installation of the roundabout; 2. Would John Wortman have a conflict of interest with regard to voting on matters related to the installation of the roundabout; and Stapleford, 22-508 January 28, 2022 Page 3 3. In the event of a voting conflict, would David Wortman or John Wortman be permitted to make a motion on a matter pertaining to the roundabout but not vote on the motion? Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. 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 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), 1103(j). Stapleford, 22-508 January 28, 2022 Page 4 The following terms related to Section 1103(a) 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. Business. Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Business with which he is associated. Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory (i.e. 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Stapleford, 22-508 January 28, 2022 Page 5 Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: such a way as to put his \[office/public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a himself, his family, or his business, and then must take action in the form of one or more specific Id., 610 Pa. at 528, 22 A.3d at 231. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the City Mayor, David Wortman is a public official subject to the provisions of the Ethics Act. As a Member and Vice President of City Council, John Wortman is a public official subject to the provisions of the Ethics Act. As father and son, David Wortman and John Wortman mbers as defined by the Ethics Act. URC is a business with which David Wortman is associated in his capacity as an officer/employee (i.e., Vice President). As the City Mayor, David Wortman generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, his son, or URC. As a Member of City Council, John Wortman generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, his father, or URC. You are advised that neither David Wortman nor John Wortman would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters before City Council pertaining to the installation of the roundabout opposed by URC, as the submitted facts do not indicate that the use of the authority of their offices would financially impact either of them or URC. Based upon the above, your question as to whether David Wortman or John Wortman would be permitted to make a motion on a matter pertaining to the roundabout but not vote on the motion need not be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Stapleford, 22-508 January 28, 2022 Page 6 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. Respectfully, Brian D. Jacisin Chief Counsel