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HomeMy WebLinkAbout22-511 Parrish 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 February 23, 2022 To the Requester: Michael J. Parrish, Jr., Esquire Spence, Custer, Saylor, Wolfe & Rose, LLC 1067 Menoher Boulevard Johnstown, PA 15905 22-511 Dear Attorney Parrish: This responds to your correspondence dated February 11, 2022, by which you requested an Advice of Counsel f Issue: 1. Would the Public Official and Employee Ethics Act prevent a Borough Council Member, who also holds a Board position with a Municipal Authority, from voting on matters related to the proposed sale of the Borough Sanitary Sewer System to the Authority? Brief Answer: NO. The Council Member would not engage in a conflict of interest should they take action regarding the sale of the Sanitary Sewer System to the Authority, because neither the Authority nor the Borough are a business with which \[the Council Member is\] associated as defined in the Ethics Act. See Warso, Order 974. Facts: You request an advisory from the Commission based upon the following facts that are summarized below: You serve as the Solicitor for Westmont Borough (hereinafter Borough) located in Cambria County, Pennsylvania. You have been authorized by the Westmont Borough Council and specifically two Members of Borough Council, Mr. Marc McCall, Council President, and Mr. Don Hall, Council Vice-President, to request an Advisory Opinion from the Commission. Parrish, 22-511 February 23, 2022 Page 2 The Borough is in the early stages of investigating and potentially negotiating a sale of the Westmont Borough Sanitary Sewer System to the Greater Johnstown Water Authority (hereinafter Authority). McCall and Hall, in addition to their duties with the Borough, serve as the Borough appointed representatives to the Authority, Hall serving as the hairman and McCall serving as a Board Member. In their positions, both have voting rights on each of the public bodies. The Authority was incorporated in 1964 by the City of Johnstown and the Boroughs of Southmont and Westmont. Currently, there are 11 Board Members of the Authority. Five from the City of Johnstown, four from Southmont Borough and two from the Borough. The Borough must address a number of issues related to the potential sale of the sewer system which may have an impact on the negotiation, and ultimately, any potential agreement between the parties to include: whether or not the system should be appraised or otherwise evaluated; what process must be undertaken by the Borough in advance of any sale, and what cost may, or may not, be incurred by the Borough related to the sale. The cost to be incurred have the potential to impact evaluation of the sewer system and what any potential buyer, including the Authority, may ultimately pay for the sewer system. In addition, McCall and Hall would be expected to participate in discussions related to, and ultimately vote on, the above matters and the approval of any agreement between the Borough and the Authority. You seek an Advisory as to the following specific issue: 1. Pursuant the Public Official and Employee Ethics Act (65 Pa.C.S.§1101 et seq.) would a conflict of interest exist which would prevent or preclude a Borough Council Member, who also holds a board position with the Authority, from voting on matters related to the proposed sale of the Borough Sanitary Sewer System to the Authority, including voting to appraise or evaluate the system; for the Borough to incur costs related to the sale of the system; or to approve any sale? 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 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 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 requester has truthfully disclosed all of the material facts. In their respective roles as President and Vice-President of Westmont Borough Council, Mr. Marc McCall and Mr. Don Hall are both public officials as that term is defined by the Public Official and Employee Ethics Act, 65 Pa.C.S. §1102, and are therefore subject to the provisions of the Ethics Act. Additionally, in their respective roles as Member and Chairman of the Greater Johnstown Water Authority, Mr. McCall and Mr. Hall are likewise public officials for purposes of applying the Ethics Act. Parrish, 22-511 February 23, 2022 Page 3 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). 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 Parrish, 22-511 February 23, 2022 Page 4 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. 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 persons immediate family is a director, officer, owner, employee or has a financial interest. Financial interest. Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 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. is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary benefit of the public official themself, any member of their immediate family, or a business with which they or a member of their immediate family are associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office/employment including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting, unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Parrish, 22-511 February 23, 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/employee: 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 public official/employee his family, or his business, and then must take action in the form of one or more specific steps to Id., 610 Pa. at 528, 22 A.3d at 231. As for the specific question posed, you are advised that neither Mr. McCall nor Mr. Hall would have a conflict under Section 1103(a) of the Ethics Act as to matters before the Borough that would directly affect the Authority because the Authority is not a business with which \[they\] are associated as defined in the Ethics Act. See Warso, Order 974; Confidential Advice of Counsel, 96-611; Potzer, Advice 00-533. Mr. McCall and/or Mr. Hall would have a conflict as to matters before the Borough and/or Authority that would result in a financial gain to themselves, a member of their immediate family, and/or a business with which they or a member of their immediate family are associated. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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. It is specifically noted that the applicability of any respective municipal code(s) was not addressed. Conclusion: As elected Members of Westmont Borough Council and/or appointed Members of the Greater Johnstown Water Authority, Mr. Marc McCall and Mr. Don Hall are both public officials as that term is defined by the Public Official and Employee Ethics Act, 65 Pa.C.S. §1102. As of the Ethics Act. Neither Mr. McCall nor Mr. Hall would transgress the conflict of interest restrictions contained within the Ethics Act which they are assoSee Warso, Order 974. Parrish, 22-511 February 23, 2022 Page 6 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. 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