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HomeMy WebLinkAbout26-528 Racunas PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 28, 2026 To the Requester: Matthew D. Racunas, Esquire 26-528 Dear Mr. Racunas: This responds to your letterdated April 9, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to thegeneral issue presented below: Issue: Whethera Member of the Board of Directors (“Board”) of the Western Westmoreland Municipal Authority (“Authority”) who is also a union-represented employee of the Authority (“the Board Member/Union Employee”) would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to participating in discussions, deliberations, and votes of the Authority Board pertaining to matters affectingeither the Authority’s union-represented employees or its non-union employees. Brief Answer:The Board Member/Union Employeewould not have a conflict of interest under Section 1103(a) of the Ethics Act with regard toparticipating in discussions, deliberations, and votes of the Authority Board pertaining to mattersthat would affect solely union-represented employees other than the Board Member/Union Employee or the Authority’s non-union employees. The Board Member/Union Employee would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions, deliberations, and votes of the Authority Board pertaining to matters that would affectthe Board Member/Union Employee andthe Authority’s other union- represented employees unless the class/subclass exclusion to the Ethics Act’s definition of Racunas,26-528 April 28, 2026 Page 2 “conflict” or “conflict of interest” would be applicable as to any impact upon the Board 1 Member/Union Employee. Facts: You request an advisory from the Commission on behalf of the Board Member/Union Employee. You have submitted factsthat may be fairly summarized as follows. The Board Member/Union Employee was recently appointed to the Authority Board. The Board Member/Union Employee is a full-time employee of the Authority. As a union-represented employee, the Board Member/Union Employee is covered by a collective bargaining agreement. The Authority Board regularly considers matters that may bear on the interests of the Board Member/Union Employee as an Authority employee, including budget and compensation matters, personnel actions, union grievances, collective bargaining, and governance policies. Based upon the above submitted facts, you pose the following questions: (1) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on matters involving the salaries, wages, and benefits of the Authority’s administrative/non-union employees, where such matters would not directly affect the terms of employment of the Board Member/Union Employee; (2) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on personnel actions, including discipline and grievances, pertaining to other union employees, where the Board Member/Union Employee would not be a party to or have a direct personal interest in the matter under consideration; (3) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on personnel actions, including discipline and grievances, pertaining to a specific union employee who works directly alongside or in close proximity to the Board Member/Union Employee, even if the Board Member/Union Employee would not be personally named in the matter, and would the working relationship between the Board Member/Union Employee and the specific union employee affect the ability to participate as to such matter; (4) Whether the Board Member/Union Employee would be permitted to attend and participate in executive sessions of the Authority Board at which union personnel matters or employee discipline will be discussed, even if the Board Member/Union Employee would refrain from voting on those matters, or would mere presence and 1 Pursuant to the definition of “conflict” or “conflict of interest” set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, action that 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, does not constitute a conflict of interest. Racunas,26-528 April 28, 2026 Page 3 passive attendance without active participation constitute a violation of the Ethics Act; (5) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on the ratification or approval of a collective bargaining agreement that governs the terms and conditions of employment of the Board Member/Union Employee as an Authority employee; (6) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on matters involving the compensation, benefits, performance evaluation, retention, and other employment conditions of non-union management- level Authority employees who supervise the Board Member/Union Employee as an Authority employee; (7) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on Authority-wide policies, rules, or regulations that would apply generally to a class of union employees that includes the Board Member/Union Employee and would affect all union employees in the class equally and not the Board Member/Union Employee uniquely; (8) Whether the Board Member/Union Employee would be permitted to participate in discussions or votes on disciplinary matters involving another union employee, where the Board Member/Union Employee would have no direct personal or financial stake in the outcome but shares union membership with the union employee subject to discipline; and (9) Whether the Board Member/Union Employee would be permitted to attend an executive session of the Authority Board without actively participating in discussions concerning collective bargaining agreement negotiations or ratification, employee discipline, the salaries and benefits of management-level supervisors, or employee policies affecting union employees, or would the Board Member/Union Employee have an obligation to be absent entirely from an executive session that has any of those topics on the agenda. Discussion: 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 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 material facts. Sections 1103(a) and 1103(j) of the Ethics Act provide: Racunas,26-528 April 28, 2026 Page 4 § 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 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), 1103(j). The following terms related to Section 1103(a) 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 Racunas,26-528 April 28, 2026 Page 5 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion”),65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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 not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order toviolate Section 1103(a) of the Ethics Act, a public official/public employee: … must act in such a way as to put his \[office/public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231. A conflict of interest would not exist to the extent the “class/subclass” exclusion set forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest" would be Racunas,26-528 April 28, 2026 Page 6 applicable.In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/publicemployee, 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; 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the Authority Board, the Board Member/Union Employee is a public official subject to the provisions of the Ethics Act. The Board Member/Union Employee would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before the Authority Board that would financially impact the Board Member/Union Employee, an immediate family member of the Board Member/Union Employee, or a business with which the Board Member/Union Employee or an immediate family member is associated unless the “de minimis exclusion” or the “class/subclass exclusion” to a conflict of interest would be applicable. Before addressing your specific questions, it is noted that the submitted facts do not indicate that any member of the Board Member/Union Employee’s immediate family is employed with the Authority. Accordingly, as the burden is on the requestor to truthfully disclose all material facts relevant to the inquiry, the answers to the questions posed are predicatedupon the assumption that no immediate family member of the Board Member/Union Employee is employed withthe Authority. In response to your specific questions, you are advised as follows. The Board Member/Union Employee would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions or voteson the following matters because they would not have a financial impact on the Board Member/Union Employee: (1)Matters involving the salaries, wages, and benefits of the Authority’s administrative/non-union employees, where such matters would not directly affect the terms of employment of the Board Member/Union Employee; Racunas,26-528 April 28, 2026 Page 7 (2) Personnel actions, including discipline and grievances, pertaining to other union employees, where the Board Member/Union Employee would not be a party to or have a direct personal interest in the matter under consideration; (3) Personnel actions, including discipline and grievances, of a specific union employee who works directly alongside or in close proximity to the Board Member/Union Employee, if the Board Member/Union Employee would not be personally named in the matter (the nature of the working relationship between the Board Member/Union Employee and the specific union employee would not affect the ability to participate as to such matter); (4) Matters involving the compensation, benefits, performance evaluation, retention, and other employment conditions of non-union management-level Authority employees who supervise the Board Member/Union Employee as an Authority employee; and (5) Disciplinary matters involving another union employee, where the Board Member/Union Employee would have no direct personal or financial stake in the outcome but shares union membership with the union employee subject to discipline. The Board Member/Union Employee further would not have a conflict of interest with regard to participating in discussions or votes on Authority-wide policies, rules, or regulations that would apply generally to a class of union employees that includes the Board Member/Union Employee and would affect all union employees in the class equally and not the Board Member/Union Employee uniquely, as the class/subclass exclusion to a conflict of interest would be applicable as to any impact upon the Board Member/Union Employee. However, the Board Member/Union Employee would have a conflict of interest with regard to participating in discussions or votes on the ratification or approval of a collective bargaining agreement that governs the terms and conditions of employment of the Board Member/Union Employee as an Authority employee unless the class/subclass exclusion would be applicable as to any impact upon the Board Member/Union Employee. See, Davison, Opinion 08-006. The Ethics Act would not prohibit the Board Member/Union Employee from attending and participating in executive sessions of the Authority Board at which union personnel matters or employee discipline will be discussed and voting on those matters subject to the condition that such matters would not have a financial impact on the Board Member/Union Employee. The Ethics Act further would not prohibit the Board Member/Union Employee from attending an executive session of the Authority Board that would involve discussions, deliberations, or votes pertaining toa matter in which the Board Member/Union Employee would have a conflict of interestsubject to the condition that the Board Member/Union Employee would not use the authority of the public position of Board Member or confidential information received as a result of being in the public position of Board Member for a prohibited private pecuniary benefit. In each instance of a conflict of interest, the Board Member/Union Employee would be required to abstain from participation, which would include voting unless one of the statutory Racunas,26-528 April 28, 2026 Page 8 exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel