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HomeMy WebLinkAbout03-570 OliverMr. William Oliver Mrs. Tracy Oliver 837 Brackenridge Avenue Brackenridge, PA 15014 -1401 Dear Mr. and Mrs. Oliver: Facts: ADVICE OF COUNSEL July 2, 2003 03 -570 Re: Conflict; Public Official /Employee; Member; Joint Sanitary Authority; Board; Employment; Contractor for Authority; Immediate Family; Spouse; Business; Business with which Associated. This responds to your two letters of June 17, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon an individual or his spouse from serving on the board of a joint sanitary authority when the individual is employed by an electrical contractor who does work for the authority. You both request an advisory as to whether you may serve on Upper Allegheny Joint Sanitary Authority (Authority) Board of Directors (Board) without conflict. You, William Oliver (William) are an employee of an electrical contractor who does work for the Authority and you, Tracy Oliver (Tracy), are the spouse of William. Brackenridge Borough advertised a position on the Authority Board for several months in the local paper. When the ad for the position was initially run, the Borough only received two letters of interest, one from the Mayor, which was denied by council, and the other from William. Brackenridge Council then decided to rerun the ad in order to obtain at least another candidate for the position. In response, Tracy submitted a letter of interest after seeing the ad over several months and learning that there were no additional responses. Although Tracy "want[s] to give back to ... [her] community" by serving on the Board, she wants to be certain that there is no conflict, given that William is an employee of a contractor who does work for the Authority. Oliver, 03 -570 July 2, 2003 Page 2 William, as an employee of a contractor for the Authority, has an hourly paid construction position. As is typical with most construction jobs, William has no idea whether he will be working at the Authority on any given day or even whether he will be working for that contractor. William has no financial interest in that family -owned contracting company. William's interest in serving on this Board is based upon his status as a resident and taxpayer. William states that he has nothing to gain and everything to lose in terms of his employment in seeking this position on the Authority Board. William's "financial situation ", as he grows closer to retirement age, is based upon his labor union affiliation and by his City of Pittsburgh contractor registrations for Electrical and HVAC, not the family owned contracting business. Council and the Borough Solicitor requested that you both obtain letters from the State Ethics Commission as to whether a conflict of interest exists for either of them to serve on the Board. 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. If appointed to the Upper Allegheny Joint Sanitary Authority, you would become public officials as that term is defined in the Ethics Act, and hence you both would be subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms 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 Oliver, 03 -570 July 2, 2003 Page 3 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 judgment 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 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (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(j). with which he or a member of his immediate family is associated. "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. Oliver, 03 -570 July 2, 2003 Page 4 In each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. In applying the provisions of Section 1103(a) of the Ethics Act to the question of your possible appointments to the Authority Board, there is no prohibition in the Ethics Act for William, Tracy, or both serving on the Authority Board. However, since William is an employee of the contractor who does work for the Authority, the contractor is a "business with which he is associated" as that term is defined under the Ethics Act. In addition, since Tracy is William's spouse, the contractor is a business with which a member of Tracy's immediate family is associated. Consequently, William and Tracy would have a conflict as to matters that would come before the Authority Board concerning the contractor. In such instances, William and Tracy would have to abstain and observe the disclosure requirement 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. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: If appointed to the Upper Allegheny Joint Sanitary Authority, you (William and Tracy) would become public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not prohibit your appointments to the Authority Board. However, since William is an employee of the contractor who does work for the Authority, the contractor is a "business with which he is associated" as that term is defined under the Ethics Act. In addition, since Tracy is William's spouse, the contractor is a business with which a member of Tracy's immediate family is associated. Consequently, you both would have a conflict as to matters that would come before the Authority Board concerning the contractor. In such instances, you must abstain and observe the disclosure requirement of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 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. Oliver, 03 -570 July 2, 2003 Page 5 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. Sincerely, Vincent J. Dopko Chief Counsel