HomeMy WebLinkAbout05-540 BarnerJeff Barner
3507 Huntertown Road
Allison Park, PA 15101
Dear Mr. Barner:
ADVICE OF COUNSEL
April 25, 2005
05 -540
Re: Conflict; Public Official /Employee; Vice Chairman; Sewer Authority; Applying For
Position of Authority Manager.
This responds to your faxed letter of March 24, 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., presents any prohibition or restrictions upon a vice chairman of
regional sewer authority with regard to applying for and serving in the position of
manager of the sewer authority.
Facts: You currently serve as Vice Chairman of the Deer Creek Drainage Basin
Authority ( "Authority "), a regional sewer authority serving the Northern Allegheny County
communities of Richland, Indiana and West Deer Townships. The Authority Board
currently consists of 5 representatives from West Deer Township, including yourself,
and 4 representatives from Indiana Township.
The Authority Manager has announced her retirement effective March 31, 2005;
thus, the Authority Board must appoint a new Manager. You state that the Authority
Board has not begun to formalize any aspects of the new position and you have not had
involvement in the "framing" of the vacant position.
While the position is vacant, the Board Chairman and two full -time office
employees will assume daily operational control of the Authority.
You are considering applying for the vacant position. You state that you would
have to "excuse" yourself from any discussions pertaining to the vacancy. You further
state you would be extremely careful so as not to involve yourself with any matters
relative to the position during upcoming Board meetings on March 28, April 13, and
April 18, 2005, especially during executive sessions when personnel matters would be
discussed.
Barner, 05 -540
April 25, 2005
Page 2
Based upon the foregoing facts, you pose the following inquiries:
1. Whether you would be required to resign from the Authority Board during the
interview process;
2. Whether "[your] aspects of [your] application would be considered a conflict of
interest "; and
3. Whether you would be prohibited from applying for the position based on prior
case law.
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 the facts that you have submitted do not indicate
how the Authority was created. Therefore, it shall be expressly assumed, for purposes
of this Advice, that the Authority was created pursuant to the Municipality Authorities Act
of 1945, as amended, 53 Pa.C.S. § 5601 et seq.
As Vice Chairman of the Authority, 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.
Barner, 05 -540
April 25, 2005
Page 3
"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.
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
Barner, 05 -540
April 25, 2005
Page 4
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 specific inquiries shall now be addressed.
With regard to the first question, pursuant to Section 1103(a) of the Ethics Act,
you would not be required to resign from the Authority Board during the interview
process. However, as an Authority Board Member, you would be prohibited from
participating in actions of the Board to appoint the next Authority Manager when you are
an applicant for the position. Davis, Opinion 89 -012. If you were to participate, such
action would be a conflict of interest in contravention of Section 1103(a) of the Ethics
Act because you would be using the authority of office for the private pecuniary benefit
of yourself. A conflict would exist even as to making recommendations against or
disapproving the other applicant(s) for the position when such action would assure or
increase the possibility that the Board would appoint you to the position of Authority
Manager. See, Pepper, Opinion 87 -008. In each instance of a conflict of interest, you
would be required to abstain fully and to satisfy the disclosure requirements of Section
1103(j) set forth above.
Since you have not stated whether you intend to resign from the Authority Board,
if you become manager, the issue of simultaneous service and conflict of interest shall
not be addressed.
With regard to your second question, since it is unclear what you are asking, you
are advised that a "conflict" or "conflict of interest" by definition requires the following
two elements: (1) use by a public official or public employee of the authority of his office
or employment or any confidential information for the (2) 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. 65 Pa.C.S. § 1102.
With regard to your third question, you would not be prohibited from applying for
the position of Authority Manager conditioned upon the qualifications and restrictions
noted above.
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 respective municipal code.
Conclusion: As Vice Chairman of the Deer Creek Drainage Basin Authority
("Authority "), 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. Pursuant to Section
1103(a) of the Ethics Act, you would not be required to resign from the Authority Board
during the interview process. However, as an Authority Board Member, you would be
prohibited from participating in actions of the Board to appoint the next Authority
Manager when you are an applicant for the position. If you were to participate, such
action would be a conflict of interest in contravention of Section 1103(a) of the Ethics
Act because you would be using the authority of office for the private pecuniary benefit
of yourself. A conflict would exist even as to making recommendations against or
disapproving the other applicant(s) for the position when such action would assure or
increase the possibility that the Board would appoint you to the position of Authority
Manager. In each instance of a conflict of interest, you would be required to abstain
fully and to satisfy the disclosure requirements of Section 1103(j) set forth above.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Act.
Barner, 05 -540
April 25, 2005
Page 5
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