Loading...
HomeMy WebLinkAbout04-526 PopovichRhonda L. Popovich 1656 Greensprings Avenue West Mifflin, PA 15122 ADVICE OF COUNSEL April 5, 2004 04 -526 Re: Conflict; Public Official /Employee; Member; Borough Council; Immediate Family; Spouse; Police; Captain; Union; Contract. Dear Ms. Popovich: This responds to your letter of March 2, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a borough council member whose spouse is a borough police captain and a member of the police union with regard to taking action as to: (1) the police contract; (2) matters pertaining the borough council's spouse individually; and (3) matters pertaining to the police department as a whole. Facts: You are a newly elected Council Member for the Borough of West Mifflin ( "Borough "), having commenced your four -year term on January 5, 2004. Your spouse is a Police Captain for the Borough and a member of the police union. Borough Council will be conducting contract negotiations with the police union for the new term beginning in January 2005. You pose the following inquiries. 1. What are your options as a voting member of Borough Council; 2. Whether you may vote on the new police contract; 3. Whether you must abstain on matters pertaining to your spouse and the police force; 4. Whether there are any other matters pertaining to the police force that you must know. Popovich, 04 -526 April 5, 2004 Page 2 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. "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 Popovich, 04 -526 April 5, 2004 Page 3 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. The requirement for abstention in the event of a conflict extends 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. 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 spouse is a member of your "immediate family" as that term is defined in the Ethics Act. Therefore, 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 or your spouse, unless the "de minimis" exclusion or the Popovich, 04 -526 April 5, 2004 Page 4 "class /subclass exclusion" contained within the statutory 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. See, Schweinsburq, Order 900. 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" On no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); 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. Having set forth the above general principles, your specific inquiries shall now be addressed. In response to your first question regarding your "options" as a voting member of Borough Council, you are advised that the Ethics Act does not provide for "options" where a conflict of interest exists, but requires the public official /public employee to abstain from participating and to disclose the reason for the abstention in accordance with Section 1103(j) of the Ethics Act. In response to your second question as to whether you may vote on the new police contract, the Commission, in Van Rensler, Opinion 90 -017, applied Section 1103(a) in addressing a similar issue. The Commission, in Van Rensler, Opinion 90 -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 Popovich, 04 -526 April 5, 2004 Page 5 regarding same because of the possibility of your influence in Borough Council's decision as to the direction and outcome of the negotiation process. However, if your spouse would belong to a class /subclass 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. In response to your third question as to whether you must abstain on matters pertaining to your spouse and the police force, you are advised that Section 1103(a) of the Ethics Act would prohibit you from participating in matters relating specifically and solely to your spouse as an individual in the police department. Therefore, you would have a conflict and could not participate, for example, in decisions ertaining to promotions, disciplinary actions or lay -offs for your spouse. Section 11 of the Ethics Act would not prohibit you from participating in matters pertaining to the police department as a whole where your use of authority of office would not result in a private pecuniary benefit to yourself or to your spouse or where the de minimis exclusion or the class /subclass exclusion would apply. Your fourth question is beyond the jurisdiction of the State Ethics Commission. 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. Conclusion: As a Council Member for the Borough of West Mifflin ( "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(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 or your spouse, unless the "de minimis" exclusion or the "class /subclass exclusion" contained within the statutory definition of "conflict" or "conflict of interest" would apply. The Ethics Act does not provide for "options" where a conflict of interest would exist, but requires the public official /public employee to abstain from participating and to disclose the reason for the abstention in accordance with Section 1103(j) of the Ethics Act. As to the possibility of participating in the police contract, 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 Borough Council's decision as to the direction and outcome of the negotiation process. However, if your spouse would belong to a class /subclass 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. Section 1103(a) of the Ethics Act would prohibit you from participating in matters relating specifically and solely to your spouse as an individual in the police department. Section 1103(a) of the Ethics Act would not prohibit you from participating in matters pertaining to the police department as a whole where your use of authority of office would not result in a private pecuniary benefit to yourself or to your spouse or where the de minimis exclusion or the class /subclass exclusion would apply. 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. Popovich, 04 -526 April 5, 2004 Page 6 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