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HomeMy WebLinkAbout22-533 MuscantePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 6, 2022 To the Requester: Dear Falco A. Muscante, Esquire: 22-533 This responds to your correspondence dated August 4, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Facts: Whether, pursuant to the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., an individual (the Individual) serving as Borough Council President would be permitted to resign from Borough Council and subsequently be appointed by the other members of Borough Council to the newly created position of Borough Manager? Brief Answer: YES. The Ethics Act would permit the Individual to resign from Borough Council and be appointed as the Borough Manager by the remaining Borough Council members subject to the condition that the Individual would not use the authority of the Individual's public position as Borough Council President or confidential information received by being Borough Council President to advance the Individual's prospects of obtaining employment as the Borough Manager. You have been authorized to request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. The Borough of Glassport (Borough) is located in Allegheny County, Pennsylvania. Elaina Skiba (Ms. Skiba) serves as Borough Council President. After attending the Allegheny League of Municipalities (ALOM) conference in April 2022, Borough Council Vice President, Anthony Colecchi (Mr. Colecchi), expressed his opinion that the Borough would benefit from the creation Muscante, 22-533 September 6, 2022 Page 2 and staffing of a Borough Manager position. At the April 19, 2022 voting meeting of Borough Council, when the executive session began and Mr. Colecchi brought up the creation of a Borough Manager position, Ms. Skiba immediately advised that she possibly could be interested in the position and did not believe that she should take part in any conversations on the subject moving forward. Ms. Skiba excused herself and left the meeting room. Borough Council subsequently authorized Mr. Colecchi to work with the Borough Solicitor to create the Borough Manager position. Mr. Colecchi and the Borough Solicitor created a draft ordinance that would create the Borough Manager position. Ms. Skiba had no interactions with the Borough Solicitor regarding the draft ordinance. At the May 3, 2022 workshop session, Ms. Skiba excused herself again when the Borough Manager position was discussed in executive session. At the May 10, 2022 voting meeting, Borough Council voted unanimously to advertise with the intent to adopt the ordinance to create the Borough Manager position. Ms. Skiba did not take part in the vote and again excused herself from the executive session discussion regarding the ordinance. On May 27, 2022, there was an email exchange between the Borough Solicitor and Mr. Colecchi regarding preparation of the job description for the Borough Manager position. Ms. Skiba was copied on that email exchange but did not provide comment or direction. The job description was finalized without input from Ms. Skiba. At the June 21, 2022 voting meeting, Borough Council adopted the ordinance establishing the position of Borough Manager and voted to advertise the job position. Ms. Skiba did not make or second either motion nor did she register a vote on either motion. The position of Borough Manager was advertised in several local newspapers, Indeed.com and through the Local Government Academy, as well as on social media. Ms. Skiba did not participate in any discussions and expressed no opinions as to where the job advertisement should be placed. The advertisements garnered 16 applicants for the position that, when reviewed by the reviewing committee, was reduced to four (4) final applicants because of the lack of the required education or experience of the other 12 applicants. Ms. Skiba was selected as one of the four finalists for the position. Ms. Skiba was not part of the reviewing committee, did not participate in any of the communications regarding this process, nor did she participate in the process itself. The reviewing committee was composed of three (3) members of Borough Council. All finalists, including Ms. Skiba, were asked the exact same questions in each interview. Ms. Skiba took no part in reviewing the applications, determining credentials of the applicants or interviewing any of the applicants. At the July 12, 2022 workshop meeting, Mr. Colecchi asked Ms. Skiba to leave the executive session before discussing the outcome of the interview process. After reviewing each of the finalist's responses to the interview questions, Mr. Colecchi advised that it was the unanimous opinion of the interviewing committee to recommend Ms. Skiba for the position. The Borough Solicitor advised Council that to be appointed, Ms. Skiba would have to resign from her current employment and from her position on Borough Council. You seek guidance as to whether there would be an impermissible conflict of interest or any other ethical issues with regard to a Borough Council President (hereinafter referred to as an Muscante, 22-533 September 6, 2022 Page 3 Individual) resigning from Borough Council and subsequently being appointed to the newly created position of Borough Manager when the Individual took no part in creating the position of Borough Manager or determining the qualifications for the position, did notparticipate in Borough Council discussions concerning the interview process or the merits of the candidates, and removed herself from all executive sessions that discussed the Borough Manager position. 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 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 the material facts. Sections 1103(a) and 11030) 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. 0) 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. Muscante, 22-533 September 6, 2022 Page 4 65 Pa.C.S. §§ 1103(a), 0). 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, apublic 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. 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. 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Muscante, 22-533 September 6, 2022 Page 5 Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Borough Council President, the Individual is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit the Individual from using the authority of the Individual's current public position as Borough Council President or confidential information received by being Borough Council President to advance an opportunity of employment with the Borough. As Borough Council President, the Individual generally would have a conflict of interest in matters pertaining to the hiring of the newly created position of Borough Manager given the Individual's interest in being employed as the Borough Manager. Such matters would include, but would not be limited to, establishing the j ob duties for the position of Borough Manager, determining the necessary qualifications for the position, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, the Individual would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. You are advised that subject to the condition that the Individual would not use the authority of the Individual's public position as Borough Council President or confidential information received by being Borough Council President to advance the Individual's prospects of obtaining employment as the Borough Manager, Section 1103(a) of the Ethics Act would not prohibit the Individual from resigning from Borough Council and subsequently being appointed as the Borough Manager by the remaining Members of the Glassport Borough Council. Cf., Sauder, Order 1774; Stevens, Advice 13-586; Allwein, Advice 13-549; Warren, Advice 12-569. 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. 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. 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. Muscame, 22-533 September 6, 2022 Page 6 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, Bridget K. Guilfoyle Chief Counsel