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HomeMy WebLinkAbout04-608 DalyJames J. Daly 305 Lincoln Street Sayre, PA 18840 -1501 ADVICE OF COUNSEL December 23, 2004 04 -608 Re: Conflict; Public Official /Employee; Borough; Council Member; Use of Authority of Office or Confidential Information; Immediate Family; Sister; Borough Secretary; Cousin; Borough Treasurer; Clerical /Maintenance Bargaining Unit; Contract. Dear Mr. Daly: This responds to your letter of November 22, 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., would present any prohibition or restrictions upon a borough council member whose sister is the borough secretary, and whose cousin is the borough treasurer, with regard to voting on the borough's finalized clerical /maintenance contract where: (1) the borough council member's sister is not a member of the clerical /maintenance bargaining unit, but under a separate agreement, receives the same pay and benefits that the members of the clerical /maintenance bargaining unit receive through their contract; and (2) the borough council member's cousin is a member of the clerical /maintenance bargaining unit. Facts: As a Council Member for the Borough of Sayre ( "Borough "), you seek an advisory from the State Ethics Commission. You have submitted facts, which may be fairly summarized as follows. Your cousin, Elizabeth Fice ( "Fice "), serves as Borough Treasurer and has served in that capacity since January 1997, prior to your service as a Borough Council Member. As Borough Treasurer, Fice is a member of the clerical /maintenance (a /k/a non - uniformed) bargaining unit, Teamsters Local Unit 529. Your sister, Jo Ann Daly ( "Daly "), serves as Borough Secretary and has served in that capacity since January 1997, prior to your service as a Borough Council Member. Daly is classified as a "confidential employee" and is not a member of the clerical /maintenance bargaining unit. However, you state that under a separate agreement, she receives the same pay and benefits that the clerical /maintenance bargaining unit members receive through their contract. You state that in December 1999, as a Borough Council Member, you voted to accept the current "non- uniformed" contract. Daly, 04 -608 December 23, 2004 Page 2 Currently, the Borough is engaged in scheduled negotiations for the clerical /maintenance contract for the period 2000 -2004. You state that you are not a member of the negotiating team by your own decision. You state your understanding that certain members of Borough Council, and possibly the Mayor, may challenge your right to vote on the finalized clerical /maintenance contract because your cousin, a union member, and your sister, a "confidential employee," would be affected by that contract. Based upon the foregoing facts, you ask whether you may vote on the finalized clerical /maintenance contract. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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 noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations within the applicable time limitation for Commission investigations. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Borough Council Member, you would be considered a public official subject to the Ethics 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 pertaining to conflicts of interest 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 Daly, 04 -608 December 23, 2004 Page 3 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. 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. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. 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). If a conflict exists, 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 Daly, 04 -608 December 23, 2004 Page 4 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 in that event participation 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 circumstances that you have submitted, a cousin is not one of the familial relationships delineated within the above statutory definition of "immediate family." Therefore, the fact that your cousin would be affected by the clerical /maintenance contract would be irrelevant. However, it is clear that your sister is a member of your "immediate family." As to your sister, the seminal Commission decision that applies Section 1103(a) of the Ethics Act under facts similar to those that you have submitted is Van Rensler, Opinion No. 90- 017. In Van Rensler, the Commission discussed the class /subclass exclusion to the definition of "conflict" or "conflict of interest" in the context of school directors seeking to participate on the negotiating team and vote on a finalized collective bargaining agreement where members of their immediate families were school district employees represented by the bargaining units. The Commission held that the Ethics Act would preclude the participation of such school directors in the negotiation process, but that they could vote on the finalized agreement as lonq as the prerequisite criteria for applying the class /subclass exclusion were met. Based upon Van Rensler and other, more recent Commission precedents, 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; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, supra); 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. In the instant matter, the prerequisite criteria for applying the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would not be met, and the class /subclass exclusion would therefore not apply, because your sister, as Borough Secretary, is not a member of the clerical /maintenance bargaining unit and does not belong to a class consisting of the general public or a true subclass consisting of more than one member. Because the class /subclass exclusion would not apply, you would have a conflict of interest and you would be prohibited from voting on the finalized clerical /maintenance contract. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Daly, 04 -608 December 23, 2004 Page 5 Lastly, 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 Sayre ( "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. In response to your question of whether you may vote on the Borough's finalized clerical /maintenance contract where: (1) your sister, the Borough Secretary, is not a member of the clerical /maintenance bargaining unit, but under a separate agreement, receives the same pay and benefits that the members of the clerical /maintenance bargaining unit receive through their contract; and (2) your cousin, the Borough Treasurer, is a member of the clerical /maintenance bargaining unit, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest and you would be prohibited from voting on the finalized clerical /maintenance contract because your sister, a member of your immediate family, would be financially affected by that contract, and the class /subclass exception to the definition of "conflict" or "conflict of interest" would not 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. 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