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HomeMy WebLinkAbout04-598 GazzaBeverly A. Gazza, Esquire Bonya, Gazza & DeGlory, LLP 134 South Sixth Street Indiana, PA 15701 ADVICE OF COUNSEL November 1, 2004 04 -598 Re: Conflict; Public Official /Employee; Borough; Council Members; Borough Water Plant; Water Plant Operator; Immediate Family; Son -in -law; Appointment of Son - in -law to Water Plant Employee Position. Dear Ms. Gazza: This responds to your letter of October 4, 2004, 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 borough council members as to appointing the son -in -law of the borough water plant operator as a water plant employee where neither the water plant operator nor his son -in -law is a member of borough council and none of the borough council members is related to the water plant operator or his son -in -law. Facts: As Solicitor for Ernest Borough ( "Borough "), you have been authorized by a majority of the Ernest Borough Council to seek an advisory from the State Ethics Commission based upon the following submitted facts. The Borough owns and operates a public water supply system which provides water to Borough residents. The operation of the Boroughs water system is overseen by the Pennsylvania Department of Environmental Protection ( "DEP "). The Borough Water Plant Operator is not certified, however, DEP has agreed to his continued employment conditioned upon the Borough posting in its water plant, the certificate of a certified operator who will be available for consultation if the need arises. The son -in -law of the Borough Water Plant Operator is a certified plant operator who has agreed to allow the Borough to post his operator's certificate in the water plant for $50 a month. Neither the Borough Water Plant Operator nor his son -in -law is a Council Member, and none of the Council Members is related to the Water Plant Operator or his son -in -law. You state that the Borough wants to ensure that it will not violate any provisions of the Ethics Act if a majority of the members of Council elect to appoint the son -in -law Gazza, 04 -598 November 1, 2004 Page 2 of the Borough Water Plant Operator as a water plant employee. You ask whether the retention by the Borough of the son -in -law of the Water Plant Operator on the terms and for the purposes described above would transgress the Ethics Act. You note that Borough Council, by a 4 to 1 vote, has authorized your request for an advisory. 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. It is further initially noted that this advisory only addresses the conduct of those individuals who have specifically given you their permission to submit your inquiry on their behalf, which in this case, are the four Council Members who have authorized your request. As to all others, you are considered a third party without legal standing. The Borough Council Members are public officials as that term is defined in the Ethics Act, and hence they 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. Gazza, 04 -598 November 1, 2004 Page 3 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, Pavlovic, Opinion 02 -005. 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. With regard to your question as to whether the Borough's retention of the Water Plant Operator's son -in -law as a water plant employee would transgress the Ethics Act, Gazza, 04 -598 November 1, 2004 Page 4 you are advised that your inquiry cannot be addressed within the statutory parameters of the Ethics Act, §§ 1107(10), (11) because the inquiry relates to the prospective conduct of the Borough as a governmental body, over which the State Ethics Commission has no jurisdiction. The Ethics Act regulates the conduct of public officials and public employees. With regard to the Council Members, the majority of whom would vote to appoint the Water Plant Operator's son -in -law as a water plant employee, the Ethics Act would not preclude them from taking such action absent the element of a prohibited private pecuniary benefit inuring to the public official himself or to a member of his immediate family under Section 1103(a) or an improper understanding under Section 1103(b) or 1103(c) of the Ethics Act. It is parenthetically noted that a son -in -law is not considered an "immediate family" member as that term is defined in the Ethics Act. See, Pulice V. State Ethics Commission, 713 A.2d 161 (Pa. Commw. 1998), appeal denied, 557 Pa. 642, 742 A.2d 1211 (1998). 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: The Members of the Ernest Borough Council are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not preclude a majority of Council Members from voting to appoint the Water Plant Operator's son -in -law as a water plant employee absent the element of a prohibited private pecuniary benefit inuring to the public official himself or to a member of his immediate family under Section 1103(a) or an improper understanding under Section 1103(b) or 1103(c) 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. 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