HomeMy WebLinkAbout04-512 ConfidentialADVICE OF COUNSEL
February 20, 2004
04 -512
Re: Conflict; Public Official /Employee; Borough; Council Member; Immediate Family;
Spouse; Corporal; Police Department; Participating as to Police Matters; De
Minimis; Class /Subclass; Exclusion.
This responds to your faxed letter of January 19, 2004, by which you requested
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a borough council
member as to participating on matters involving the police department wherein her
spouse is a corporal.
Facts: As a newly elected Council Member for the Borough of A ( "Borough "), you
swan advisory from the State Ethics Commission.
Your spouse is a Corporal in the Borough Police Department. During the election
campaign and at open council meetings prior to your election, you provided full disclosure
as to your spouse's position in the Police Department. In addition, you personally
disclosed this information to all other members of Borough Council, and on your
Statement of Financial Interests, which is on file with the Borough and available for
inspection.
You state that the positions of Corporal and Sergeant are neither managerial nor
administrative in nature. Individuals serving in these positions function as patrol officers
and can fill patrol officer slots when necessary, just as patrol officers can fill supervisor
slots when necessary.
You ask whether you would have a conflict of interest with regard to reviewing
and voting on police matters such as police budgets, contracts, promotions, and
ordinances relating to the make up of the Police Department. You further ask whether
you may participate on matters involving a proposal by the Mayor to B.
As to general police matters, you opine that your spouse's employment with the
Police Department would not provide the basis for a conflict of interest unless your
official action would have a "potentially disproportionate beneficial or detrimental impact
on your spouse as a member of the Police Department, and the potential impact [would]
be more than 'de minimis,"' as for example, where you would participate on action to
give your spouse a promotion within the Police Department.
Confidential Opinion 04 -512
February 20, 2004
Page 2
As to the Mayor's proposal, you state that because your spouse is not a C, and
the proposal would not D, the proposal would not have a "potentially disproportionate
beneficial or detrimental impact on your [spouse]." You state that any otential financial
impact of the proposal on your spouse would be de minimis due to: (1) E; (2) F; and (3)
your spouse's seniority within the Police Department. Based upon the foregoing, you
conclude that the Mayor's proposal would not form the basis for a conflict of interest for
you.
In addition to the above facts, you have submitted a copy of an organization chart
entitled, "Municipal Structure Pennsylvania Borough Government," a copy of an excerpt
from an identified source relating to the role of borough council members and the
structure of borough government, and a copy of an excerpt from the Police Contract
relating to the overtime of police officers, which documents are incorporated herein by
reference.
You ask whether your analysis as to the above is correct.
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.
As a Borough Council Member, you are a public official as that term is defined in
the Ethics Act, and hence you are 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
with which he or a member of his immediate family is
associated.
Confidential Opinion 04 -512
February 20, 2004
Page 3
"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.
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).
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.
Confidential Opinion 04 -512
February 20, 2004
Page 4
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.
Your spouse is clearly a member of your "immediate family" as that term is
defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, as a Borough
Council Member, you would generally have a conflict of interest in matters that would
financially benefit yourself, a member of your immediate family such as your spouse, or
a business with which you or a member of your immediate family is associated. In each
instance of a conflict, you would be required to abstain fully and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. The requirement for abstention in the
event of a conflict would extend not only to voting, but also to other uses of authority of
office, such as discussing, conferring with others, or lobbying for a particular result.
See, Juliante, Order 809.
Having established the above general principles, your specific inquiry regarding
whether you may participate on matters involving promotions, ordinances establishing
the make up of the Police Department, the police budget, police contract, and Mayor's
proposal shall now be addressed.
As a general rule, if your actions with respect to promotions, ordinances
establishing the make up of the Police Department, the police budget, police contract,
and Mayor s proposal would financially impact your spouse, you would have a conflict of
interest under Section 1103(a) of the Ethics Act and would be required to abstain and
observe the disclosure requirements of Section 1103(j) of the Ethics Act, unless the "de
minimis" exclusion or the "class /subclass exclusion' contained within the definition of
"conflict" or "conflict of interest" would apply.
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 upon a public official, a member of his immediate family,
or a business with which he or a member of his immediate family is associated, a
conflict would not exist and Sections 1103(a) and 1103(j) of the Ethics Act would not
restrict participation in such matter. See, Schweinsburq, Order 900.
Your participation relative to promotions, the police budget, and police contract
clearly would not have an insignificant economic impact; therefore, the de minimis
exclusion wouId7 of apply as to these matters. As to ordinances establishing the make
up of the Police Department, it is administratively noted that the Borough Code provides
that "the borough may, by ordinance, establish a police department consisting of chief,
captain, lieutenant, sergeants, or any other classification desired by council, and council
may, subject to the civil service provisions of this act, if they be in effect at the time,
designate the individuals assigned to each office...." The Borough Code, 53 P.S. §
46121. If such ordinances would, for example, eliminate your spouse's position, such that
your spouse would necessarily move up in rank and receive an increase in salary that
would be more than insignificant, or designate that your spouse be assigned to a higher
rank and receive an increase in salary that would be more than insignificant, the de
minimis exclusion would not apply. As to the Mayor's proposal, based upon your factual
statements that (1) your spouse is not C; (2) the proposal would not D; (3) E; and (4) your
spouse has seniority within the Police Department, it would appear that the proposal
would have an insignificant financial impact upon your spouse such that the de minimis
exclusion would apply. However, if the Mayor's proposal would financially impact your
spouse so that he would receive significantly less G, the de minimis exclusion would not
apply.
Confidential Opinion 04 -512
February 20, 2004
Page 5
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" as the
other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002
(citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 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, Opinion 02 -003.
With respect to promotions, where such promotions would be based upon years
of service, such that a police officer could move up in rank after meeting certain service
requirement(s), and your spouse would belong to a subclass consisting of more than
one person and be affected to the same degree as the other members of the subclass,
you would not be precluded from participating as to such matter. An example of such a
situation would be where your spouse and another corporal would both meet the service
requirement(s) and qualify to move up in rank in exactly the same manner. However,
where a promotion would relate solely to your spouse, the class /subclass exclusion
would not apply, and you would have a conflict of interest under Section 1103(a) of the
Ethics Act as to participating in such matter.
As to the police budget, you are advised that portions of the budget pertaining to
the Police Department generally would not present a conflict of interest for you absent
some private pecuniary benefit to your spouse. However, where your spouse would be
financially impacted by the budget, you might have a conflict depending upon how the
budget is set up.
If the funding for your spouse's salary would be a separate line item on the
budget, you would have a conflict as to that particular line item. However, if the funding
for your spouse's salary would be included within a line item for a class /subclass and
your spouse and the other members of the class /subclass would receive the same
financial benefits thereby, you would not have a conflict as to that line item and could
participate and vote on it. See, Mattie, Advice 91 -508, addressing similar questions in
the context of contract negotiations and the budget process. An example of an instance
where the class /subclass exclusion would apply is a budget that would contain an
across the board raise for all corporals, including your spouse. In such an instance,
your spouse would belong to a subclass of corporals consisting of more than one
person and be affected to the same degree. Under these circumstances, you would not
have a conflict of interest and would be permitted to participate in the police budget.
As to the police contract, the Commission, in Van Rensler, Opinion No. 017,
applied Section 1103(a) in addressing an issue similar to the one posed above. The
issue in Van Rensler was whether the Ethics Law would prohibit school directors,
whose members of their immediate family were school district employees represented
by bargaining units, from participating on a negotiating team and voting on a collective
bargaining agreement.
The Commission held that the Ethics Law would not restrict the school directors
from voting on the finalized agreement, but would preclude their participation in
negotiations leading up to the finalized agreement. The Commission explained that the
school directors could vote on the finalized agreement because of the exclusion in the
definition of "conflict" which applies if the immediate family member is a member of a
subclass consisting of an industry, occupation or other group containing more than one
member and the immediate family member is affected to the same degree as all the
Confidential Opinion 04 -512
February 20, 2004
Page 6
other members of the subclass. The Commission stated that as long as the two
prerequisites for applying the exclusion were met, the school directors could vote on the
final collective bargaining agreement.
The Commission's holding that the Ethics Law would preclude the school
directors from participating in negotiations was based on its reasoning that "by being
part of the negotiating team which is part of their public position, the school directors
would be necessarily privy to confidential information concerning the bargaining units of
which their family members are parts." Van Rensler, at 4.
Based upon Van Rensler, you would be precluded from participating in the
negotiations leading to the finalized police contract or receiving confidential information
regarding same because of the possibility of your influence in Council's decision as to
the direction and outcome of the negotiation process. However, if the class /subclass
exclusion would apply, the Ethics Act would not prohibit you from voting on the finalized
police contract.
Finally, with respect to ordinances establishing the make up of the Police
Department, where such ordinances would also include a designation of individuals
assigned to the various positions, and your spouse and another individual would both
be assigned to the same position with the same compensation, the class /subclass
exclusion would apply and therefore, you would not be precluded from participating as
to such matter.
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: As a Council Member for the Borough of A ( "Borough "), you are a
public official subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your spouse is a member of your immediate
family. Pursuant to Section 1103() of the Ethics Act, as a Borough Council Member,
you would generally have a conflict of interest in matters that would financially benefit
yourself, a member of your immediate family such as your spouse, or a business with
which you or a member of your immediate family is 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.
In response to your specific inquiry as to whether you may participate on matters
involving promotions for your spouse, ordinances establishing the make up of the Police
Department, the police budget, police contract, and the Mayor's proposal to B, you are
advised as follows.
As a general rule, if your actions with respect to the police budget, police
contract, and the Mayor's proposal would financially impact your spouse, you would
have a conflict of interest and would be required to abstain and observe the disclosure
requirements of Section 1103() of the Ethics Act, unless the "de minimis" exclusion or
the "class /subclass exclusion, as those exclusions are fully discussed above, would
apply.
Your participation relative to promotions, the police budget, and police contract
clearly would not have an insignificant economic impact; therefore, the de minimis
exclusion woukTnot apply as to these matters. As to ordinances establishing the make
up of the Police — Department, if such ordinances would, for example, eliminate your
spouse's position, such that your spouse would necessarily move up in rank and
receive an increase in salary that would be more than insignificant, or designate that
your spouse be assigned to a higher rank and receive an increase in salary that would
Confidential Opinion 04 -512
February 20, 2004
Page 7
be more than insignificant, the de minimis exclusion would not apply. As to the Mayor's
proposal, based upon your factual statements that (1) your spouse is not C; (2) the
proposal would not D; (3) E; and (4) your spouse has seniority within the Police
Department, it would appear that the proposal would have an insignificant financial
impact upon your spouse such that the de minimis exclusion would apply. However, if
the Mayor's proposal would financially impact your spouse so that he would receive
significantly less G, the de minimis exclusion would not apply.
With respect to promotions, where such promotions would be based upon years
of service, such that a police officer could move up in rank after meeting certain service
requirement(s), and your spouse would belong to a subclass consisting of more than
one person and be affected to the same degree as the other members of the subclass,
you would not be precluded from participating as to such matter. An example of such a
situation would be where your spouse and another corporal would both meet the service
requirement(s) and qualify to move up in rank in exactly the same manner. However,
where a promotion would relate solely to your spouse, the class /subclass exclusion
would not apply, and you would have a conflict of interest under Section 1103(a) of the
Ethics Act as to participating in such matter.
As to the police budget, you are advised that portions of the budget pertaining to
the Police Department generally would not present a conflict of interest for you absent
some private pecuniary benefit to your spouse. However, where your spouse would be
financially impacted by the budget, you might have a conflict depending upon how the
budget is set up. If the funding for your spouse's salary would be a separate line item
on the budget, you would have a conflict as to that particular line item. However, if the
funding for your spouse's salary would be included within a line item for a class/
subclass and your spouse and the other members of the class /subclass would receive
the same financial benefits thereby, you would not have a conflict as to that line item
and could participate and vote on it.
As to the police contract, if the class /subclass exclusion would apply, the Ethics
Act would not prohibit you from voting on the finalized police contract. However, you
would be precluded from participating in the negotiations leading to such finalized
agreement or receiving confidential information regarding same because of the
possibility of your influence in Council's decision as to the direction and outcome of the
negotiation process.
Finally, with respect to ordinances establishing the make up of the Police
Department, where such ordinances would also include a designation of individuals
assigned to the various positions, and your spouse and another individual would both
be assigned to the same position with the same compensation, the class /subclass
exclusion would apply and therefore, you would not be precluded from participating as
to such matter.
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.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Confidential Opinion 04 -512
February 20, 2004
Page 8
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