Loading...
HomeMy WebLinkAbout23-541 Brannon 1 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 July 21, 2023 To the Requester: Kevin E. Brannon 23-541 Dear Mr. Brannon: This responds to your email received June 26, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issue presented below: Issue: Whether et seq., would impose prohibitions or restrictions upon an individual with regard to being elected and serving as a member of council for a borough that employs his son. Brief Answer: The Ethics Act would not prohibit the individual from being elected and serving as a member of council for the borough that employs his son. However, because the individualson is a member of his Ethics Act, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act Facts: You request an advisory from the Commission based upon the following submitted facts. You are seeking election as a Member of Council for Castle Shannon Borough , and he works in the Borough Public Works You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to being elected and serving as a Member of Borough Council. In particular, you pose the following questions: Brannon, 23-541 July 21, 2023 Page 2 (1) Whether you would be required to recuse yourself from any particular matters in (2) Whether you would be permitted to vote on a pay raise that would involve all employees of the Borough Public Works Department and not only your son; and (3) Whether you would be permitted to vote on matters that would involve the Public Works Department as a whole and not only your son. Although you pose an additional question pertaining to the propriety of communications that one or more Borough representatives engaged in with your son in relation to your candidacy for Borough Council, that question cannot be addressed in this advisory because it does not relate to your conduct if you would be elected as a public official. See, Section 1107(11) of the Ethics Act 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 Brannon, 23-541 July 21, 2023 Page 3 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 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. A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. 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 Brannon, 23-541 July 21, 2023 Page 4 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 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the class/subclassexclusion set forth within the Ethics Acts definition of the term "conflict" or "conflict of interest" would be applicable. The de minimis exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act would not prohibit you from being elected and serving as a Borough Council Member while your son is employed with the Borough. If you would be elected as a Borough Council Member, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. Your son is a member of your As a Borough Council Member, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you or your son. Brannon, 23-541 July 21, 2023 Page 5 You generally would have a conflict of interest in matters before Borough Council that would relate to your son and his employment with the Borough. In particular, you would have a conflict of interest with regard to potential promotions or disciplinary actions involving your son. You additionally would have a conflict of interest with regard to approving a Borough payroll that would include payment of compensation to your son unless the compensation to be paid to your son would be prefixed, routine, and uncontested and would not include any overtime or other amounts that would not be prefixed, routine, and uncontested. Cf., Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89-023; Maholick, Opinion 90-010. With respect to pay raises, to the extent that a pay raise before Borough Council would relate solely to your son and no other Borough employees, you would have a conflict of interest with regard to voting on such pay raise. To the extent that a pay raise before Borough Council would relate to your son and other Borough employees, you would have a conflict of interest with regard to voting on such pay raise unless the class/subclas applicable, your son would have to be part of an appropriate subclass that would include at least one other Borough employee: (1) who would be similarly situated as the result of relevant shared characteristics; and (2) who would be reasonably affected to the same degree by Borough pay raise. With respect to a matter involving the Public Works Department as a whole and not only your son, you would have a conflict of interest with regard to voting on such matter if: (1) such matter would result in a private pecuniary (financial) benefit to your son; and (2) neither the de minimis exclusion nor the class/subclass exclusion would be applicable. In each instance of a conflict of interest, you 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. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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. 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 Brannon, 23-541 July 21, 2023 Page 6 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