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HomeMy WebLinkAbout05-584 KoastJoseph Koast 543 Morris Hollow Road Smock, PA 15480 ADVICE OF COUNSEL October 20, 2005 05 -584 Re: Conflict; Public Official /Employee; Vice Chairman of Municipal Authority; Immediate Family; Son; Applicant; Laborer for the Authority. Dear Mr. Koast: This responds to your letter of September 21, 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 an authority board member with regard to participating in the hiring of a laborer for the authority when the board member's son is an applicant for the position. Facts: As Vice Chairman of the Board of Directors of the North Fayette County Municipal Authority ( "Authority "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. The Board is in the process of hiring a laborer for the Authority. The Authority has advertised for the vacancy in the newspaper as well as with PA Career Links. At the current time, there are approximately 100 applications on hand and the Authority's General Manager and Distribution Manager are screening the applicants. When the General Manager and Distribution Manager agree on five prospective candidates, the Personnel Committee will interview those five individuals and administer a test to each one. The results of the test and the interview will determine which three of the five candidates will be presented to the Board for consideration. Prior to presentation to the Board, the final three candidates will also undergo a physical, drug /alcohol screening and a criminal background check. Your state that your son is one of the applicants for the job. You seek guidance as to the prohibitions and restrictions that would apply to you during the hiring process. 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. Koast, 05 -584 October 20, 2005 Page 2 As Vice Chairman of the Board of Directors for the North Fayette County Municipal Authority ( "Authority "), you are a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence you are subject to the provisions of that law. 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 that pertain 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 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. §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 Koast, 05 -584 October 20, 2005 Page 3 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, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the circumstances which you have submitted, 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. Under the submitted facts, it is clear that your son is a member of your "immediate family" as that term is defined under the Ethics Act. As an Authority Board Member, you would be prohibited from participating in actions of the Board to hire for the position of laborer for the Authority when your son is 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 your son. 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 hire your son to the position of laborer for the Authority. See, Pepper, Opinion 87 -008. If your son would be hired to the position, you would have a conflict of interest in the future as to employment issues pertaining to your son individually such as his compensation, evaluation(s), raises and other matters that would financially impact him. 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; 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. Koast, 05 -584 October 20, 2005 Page 4 Conclusion: As Vice Chairman of the Board of Directors for the North Fayette County Municipal Authority ( "Authority "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(a) of the Ethics Act would prohibit you from participating in actions of the Board to hire for the position of laborer for the Authority when your son is an applicant for the p osition because your son is a member of your immediate family as that term is defined the Ethics Act. 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 hire your son to the position of laborer for the Authority. If your son would be hired to the position, you would have a conflict of interest in the future as to employment issues pertaining to your son individually such as his compensation, evaluations), raises and other matters that would financially impact him. In each instance of a conflict of interest, you would be required to abstain 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. 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