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HomeMy WebLinkAbout05-538 FirdaFalco A. Muscante, Esquire 3 ,Q4 Ross Street 7 Floor, Mitchell Building Pittsburgh, PA 15219 ADVICE OF COUNSEL April 19, 2005 05 -538 Re: Conflict; Public Official /Employee; Borough Council Member; Borough Assistant Secretary; Setting Compensation; Approving Payroll; Setting Hours; Approving Additional Hours /Overtime. Dear Mr. Muscante: This responds to your letter of March 15, 2005, 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 who is also employed as the Borough's Assistant Secretary with regard to: (1) participating in establishing the compensation of the Borough administrative employees including herself; (2) participating in voting upon the Borough bills and particularly the Borough payroll, which includes her pay; and (3) exercising responsibility for the Borough Office operations including the setting of her own hours and approving any additional or overtime hours that she would work. Facts: As Solicitor for the Borough of Lincoln ( "Borough "), you request an advisory on behalf of Borough Council Member Tammy Firda ( "Firda "). You have submitted facts, the material portions of which may be fairly summarized as follows. Firda has served as a Borough Council Member since March 17, 2000. In 2002, as a Borough Council Member, Firda voted on an Administrative Resolution dated October 10, 2002, which established the benefits and compensation of the Borough office employees. Subsequently, an opening occurred for the position of Borough Assistant Secretary. Firda expressed an interest in being appointed to that position while continuing to serve as a Borough Council Member. After reviewing the applicable provisions of the Borough Code, the Borough Solicitor opined that because the Borough's population was less than 3,000, Firda could serve as a compensated Borough employee while continuing in her role as an elected Borough Council Member. On September 16, 2003, Firda was appointed Borough Muscante /Firda, 05 -538 April 19, 2005 Page 2 Assistant Secretary by a majority vote of Borough Council, with Firda abstaining. Upon commencing Borough employment, Firda began to receive the benefits and compensation set forth in the aforesaid Administrative Resolution of October 10, 2002. The hours of operation of the Borough Secretary's office are Monday through Friday from 9:00 a.m. to 3:00 p.m. You state that these hours were established by a Settlement Agreement in a court proceeding and have been encompassed within a court order. You further state that as Borough Assistant Secretary, Firda has worked these hours except on isolated occasions where her hours varied based upon the needs of the Borough and with the express knowledge of Council President. Following the November 2003 General Election, Firda was involved in discussions regarding the desirability of adding her as an authorized signatory on Borough accounts. On January 5, 2004, Borough Council adopted a Resolution to add Firda as a signatory to Borough accounts. You state that at the express direction of the newly elected and appointed Council Members, Firda began to execute Borough checks together with the Borough Secretary/Treasurer. As Assistant Secretary, Firda signed her own payroll checks, which checks were countersigned by the Borough Secretary /Treasurer. You further state that while serving both as a Borough Council Member and as Borough Assistant Secretary, Firda voted on the annual "Salary and Wage Ordinance" by which Borough Council renewed the original October 10, 2002, Administrative Resolution establishing the benefits and compensation of the Borough administrative employees including the Borough Assistant Secretary. Finally, you note that throughout her tenure as a Borough Council Member, Firda has served as Chairperson of the following Borough Committees as of the indicated dates: 3/21/00: Road, Recreation and Borough Development Committee; 5/16/00: Finance, Recreation and Borough Development Committee; 1/27/04: Public Works, Recreation, Legislation, Borough Property and Borough Development Committee; 9/21/04: Finance, Recreation and Borough Development Committee; 1/18/05: Recreation, Finance, Borough Development and Planning and Zoning Committee; and 2/21/05: Recreation, Borough Development, and Planning and Zoning Committee. Recently, questions have been raised regarding potential conflict(s) of interest on the part of Firda. Following review, the Borough Solicitor has advised as follows: (1) That Firda be removed as a check signatory and discontinue the practice of signing her own payroll checks; (2) That Firda have no direct involvement in the Finance Committee as Finance Chair, and that those responsibilities and duties be assigned to another Council Member; (3) That an updated Resolution establishing the compensation of the Borough administrative employees be acted upon by Borough Council, at which Muscante /Firda, 05 -538 April 19, 2005 Page 3 time Firda must abstain and indicate as the reason for her abstention that the matter relates to her benefits and compensation; (4) That in voting upon the bills of the Borough, Firda abstain from voting upon the payroll that includes herself and indicate as the reason for her abstention that she cannot vote upon her own compensation, but that Firda be permitted to vote upon all other bill payments that do not directly involve herself; and That another Council Member, preferably President of Council, take direct responsibility for the Borough Office operations, including the setting of Firda's hours and responsibility for approving any additional or overtime hours that Firda may be required to work. You state that the Borough has implemented the first two recommendations enumerated above. However, prior to Council acting upon the other three remaining recommendations, you seek confirmation that such recommendations must be implemented in the manner proposed. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only s 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 by a person who is subject to the Ethics Act. 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. (5) As a Borough Council Member, Firda is a "public official" subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted Activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Muscante /Firda, 05 -538 April 19, 2005 Page 4 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(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. 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 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. In each instance of a conflict of interest, Section 1103(] of the Ethics Act requires the public official /public 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 Muscante /Firda, 05 -538 April 19, 2005 Page 5 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 your specific inquiry regarding the three remaining recommendations of the Borough Solicitor that have not yet been implemented, it is noted that the State Ethics Commission does not instruct governmental bodies as to how they should conduct their affairs. However, as to Firda's prospective conduct, you are advised as follows. With respect to the Solicitor's third recommendation, specifically that an updated Resolution establishing the compensation of the Borough administrative employees be acted upon by Borough Council with Firda abstaining and indicating as the reason for her abstention that the matter relates to her benefits and compensation, you are advised that Firda would have a conflict of interest with regard to setting her own compensation as Borough Assistant Secretary. Therefore, Firda would be required to abstain from using the authority of her office as a Borough Council Member in such matters, and as with any conflict of interest, she would also be required to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With respect to the Solicitor's fourth recommendation, specifically that Firda abstain from voting upon the payroll that includes her own pay and indicate as the reason for her abstention that she cannot vote upon her own compensation, but that Firda be permitted to vote upon all other bill payments that do not directly involve herself, you are advised that Firda would have a conflict of interest as to approving her own pay to the extent she is not a salaried employee. This conclusion is based upon the fact that for a non - salaried employee, pay may vary depending upon the number of hours worked. Cf., Krushinski, Order 168, and Maholick, Opinion 90 -010, involving payments for routine, uncontested obligations that are non - discretionary and pre- determined as to amount. With respect to the Solicitor's fifth recommendation, specifically that a Council Member other than Firda take direct responsibility for the Borough Office operations including the setting of Firda's hours and responsibility for approving any additional or overtime hours that Firda may be required to work, you are advised that Firda would have a conflict of interest as to setting her own hours or approving any additional or overtime hours that she would work, such that the Solicitor's recommendation would be consistent with Section 1103(a) of the Ethics Act. 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 Borough Council Member of Lincoln Borough ( "Borough "), Tammy Firda ( "Firda ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Firda, who is both a Borough Council Member and a Borough employee, specifically, the Borough Assistant Secretary, would have a conflict of interest with regard to: (1) setting her own compensation as Borough Assistant Secretary; (2) participating in approving her own pay to the extent she is not a salaried employee; and (3) setting her own hours or approving any additional or overtime hours that she would work. In each instance of a conflict of interest, Firda would be required to abstain fully from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Muscante /Firda, 05 -538 April 19, 2005 Page 6 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 requester 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