HomeMy WebLinkAbout04-519 SmithMary Jo Smith, Director
Department of Public Safety
420 Knox Avenue
Monessen, PA 15062
ADVICE OF COUNSEL
March 8, 2004
04 -519
Re: Conflict; Public Official /Employee; City; Council Member; Director of Public
Safety; Immediate Family; Son; Participating on Police Department Matters.
Dear Ms. Smith:
This responds to your letter of January 20, 2004, by which you requested 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 city council
member whose son is a police officer for the city as to participating on police
department matters.
Facts: On the advice of the Solicitor for the City of Monessen ( "City "), you seek
advisory from the State Ethics Commission as your prospective conduct as a City
Council Member.
You state that your son is a City police officer. You ask for guidance as to when
you may vote and when you must abstain from voting on issues pertaining to the police
department. You state that you are required to vote on every issue coming before
Council.
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.
Smith, 04 -519
March 8, 2004
Page 2
As a City 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.
"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
Smith, 04 -519
March 8, 2004
Page 3
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.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, a public 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.
Your son 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 City Council
Member, you would generally have a conflict of interest in matters that would financially
benefit yourself and your son. You would specifically have a conflict as to matters
involving the Police Department due to your son's employment as a City police officer.
Thus, you could not participate in matters involving the Police Department budget,
salaries, overtime, or matters in general that would financially impact upon the City
police officers and in particular your son as a Police Officer. In such instances of
conflict, you must abstain and observe the disclosure of Section 1103(j) detailed above.
There is an exclusion to the definition of "conflict" or "conflict of interest" involving
actions that affect to the same degree members of a class /subclass. 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
Smith, 04 -519
March 8, 2004
Page 4
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, Opinior0l -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, Opinion 02 -003.
The police contract is an example of a matter in which you could participate if the
class /subclass exclusion would apply. As to such participation, the Commission, in Van
Rensler, Opinion No. 017, applied Section 1103(a) in addressing a similar issue.
The Commission, in Van Rensler, Opinion No. 017, applied Section 1103(a) in
addressing 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
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 City Council's decision as
to the direction and outcome of the negotiation process. However, if your son would
belong to a subclass of police officers consisting of more than one person and be
affected to the same degree, the Ethics Act would not prohibit you from voting on the
finalized police contract.
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 Third Class City Code.
Conclusion: As a member of the City Council of Monessen, 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 son is a member of your immediate family.
Pursuant to Section 11030 of the Ethics Act, as a City Council Member, you would
generally have a conflict of interest in matters that would financially benefit yourself and
your son. You would specifically have a conflict as to matters involving the Police
Department due to your son's employment as a City police officer. Thus, you could not
Smith, 04 -519
March 8, 2004
Page 5
participate in matters involving the Police Department budget, salaries, overtime, or
matters in general that would financially impact upon the City police officers and in
particular your son as a Police Officer. As to the possibility of participating in 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 In such
instances of conflict, you must abstain and observe the disclosure of Section 1103(j)
detailed above. 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
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