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HomeMy WebLinkAbout06-513 ShearerRonald D. Shearer 810 N. Loyalsock Avenue Montoursville, PA 17754 Dear Mr. Shearer: ADVICE OF COUNSEL February 13, 2006 06 -513 Re: Conflict; Public Official; Borough Council Member; Use of Authority of Office or Confidential Information; Borough Committees; Immediate Family; Son; Borough Employee. This responds to your letter of January 12, 2006, 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 w� son is employed by the borough streets and water department with regard to: (1) serving on various committees in the borough, at least some of which may impact borough employees including the son; (2) attending personnel meetings at which contract negotiations involving the son will be discussed; and (3) voting on the final employee contract for all personnel including the son. Facts: You are a Member and Vice President of Montoursville Borough Council ("Borough Council "). Your son is employed by Montoursville Borough ( "Borough ") in the Streets and Water Department. You ask whether you would have a conflict of interest pursuant to the Ethics Act with regard to: (1) serving on various Borough committees, specifically, the Personnel and Safety, Streets and Water, Planning and Zoning, and Building and Assets committees, at least some of which may impact borough employees including your son; (2) attending personnel meetings pertaining to discussions of Union negotiations if you would not attend actual negotiations; and (3) voting on the final employee contract for all personnel including your son. 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. Shearer, 06 -513 February 13, 2006 Page 2 It is further initially 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 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. As a Member and Vice President of Borough Council, you are a "public official" subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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 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 Shearer, 06 -513 February 13, 2006 Page 3 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. 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. Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act requires a public official /public employee with a conflict of interest 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. The above statutory definition of "conflict" or "conflict of interests" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. 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, Opinion 90- 017); 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. Shearer, 06 -513 February 13, 2006 Page 4 In applying the above provisions of the Ethics Act to the circumstances you have submitted, your son is clearly a member of your immediate family. Subject to the "de minimis" and "class /subclass" statutory exclusions, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public office or confidential information obtained by being a public official for the private pecuniary benefit of your son. See, Santore, Order 1152. See also, Bartholomew, Order 1195; Yatron, Opinion 02 -008. You are further advised that in addition to generally having a conflict of interest as to matters financially impacting your son, you would also generally have a conflict of interest as to matters affecting your son's superior(s) within the Borough. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion 86- 007-R, Woodrinq, Opinion 90 -001, Elisco, Opinion 00 -003, and Confidential Opinion, 05 -004. The basis for such conflicts would be that your son's superior(s) would exercise authority over your son as to his Borough employment, while you would exercise authority over the said superior(s). For the reasons enunciated in Bassi, Woodrinq, Elisco, and Confidential Opinion, 05 -004, supra, such a reciprocal arrangement would generally result in a conflict of interest for ou under Section 1103(a) of the Ethics Act in matters pertaining to your son's superior). In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Your specific inquiries shall now be addressed. Your first specific inquiry is whether you would have a conflict of interest pursuant to the Ethics Act with regard to serving on various Borough committees, specifically, the Personnel and Safety, Streets and Water, Planning and Zoning, and Building and Assets committees, at least some of which may impact borough employees including your son. It is initially noted that the facts that you have submitted do not provide any details regarding the authority or work of the named Borough committees, their members, or their chairs. Therefore, only general guidance may be provided to you regarding this question. Although generally the Ethics Act would not preclude you from serving on Borough committee(s) subject to the restrictions and requirements of Sections 1103(a) and 1103(j) of the Ethics Act, there could be one or more particular Borough committees that would present inherent conflicts of interest for you, such that you could not, as a practical matter, function as a committee member or chair without running afoul of the Ethics Act. Cf., Fletcher, Opinion 89 -018. In the absence of sufficient submitted facts, this Advice cannot conclusively determine whether service on the committees that you have named would present an inherent conflict of interest for you. However, it would seem likely that service on the Borough's Personnel and Safety Committee or Streets and Water Committee could at a minimum result in recurring or ongoing conflicts of interest for you in matters pertaining to your son or his superior(s). Your second specific inquiry is whether you would have a conflict of interest with regard to attending personnel meetings pertaining to discussions of Union negotiations if you would not attend actual negotiations. You are advised that pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from: (1) participating or being present at any non - public personnel meeting when Borough employee contract negotiations would be discussed; and (2) receiving confidential information regarding the Borough employee contract negotiation process, including but not limited to negotiation strategies or dollar amounts. See, Van Rensler, Opinion No. 90 -017; Mattie, Advice No. 91 -508. Your third specific inquiry is whether you would have a conflict of interest with regard to voting on the final employee contract for all Borough personnel including your son. You are advised that you could vote on the finalized employee contract if the Shearer, 06 -513 February 13, 2006 Page 5 class /subclass exclusion to the definition of "conflict" or "conflict of interest," discussed above, would be applicable. Van Rensler, Opinion No. 90 -017. In order for the class /subclass exclusion to apply, your son would have to be a member of a subclass consisting of multiple Borough employees similarly situated as the result of relevant shared characteristics, and your son would have to be reasonably affected to the same degree as the other subclass members by the contract. Kablack, supra. Assuming the aforesaid two conditions would be met, you would be permitted to vote on the finalized Borough employee 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. 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 Member and Vice President of Montoursville Borough Council ( "Borough Council "), 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. Your son, who is employed by Montoursville Borough ("Borough") in the meets and Water Department, is a member of your immediate family. Subject to the "de minimis" and "class /subclass" exclusions to the Ethics Act's definition of "conflict" or "conflict of interest," Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public office or confidential information obtained by being a public official for the private pecuniary benefit of your son. In addition to generally having a conflict of interest as to matters financially impacting your son, you would also generally have a conflict of interest as to matters affecting your son's superior(s) within the Borough. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 11030) of the Ethics Act. Although generally the Ethics Act would not preclude you from serving on Borough committee(s) subject to the restrictions and requirements of Sections 1103(a) and 1103(j) of the Ethics Act, there could be one or more particular Borough committees that would present inherent conflicts of interest for you, such that you could not, as a practical matter, function as a committee member or chair without running afoul of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from: (1) participating or being present at any non- public personnel meeting when Borough employee contract negotiations would be discussed; and (2) receiving confidential information regarding the Borough employee contract negotiation process, including but not limited to negotiation strategies or dollar amounts. You could vote on the finalized Borough employee contract if the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would be applicable, that is, if your son would be a member of a subclass consisting of multiple Borough employees similarly situated as the result of relevant shared characteristics, and your son would be reasonably affected to the same degree as the other subclass members by the contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Shearer, 06 -513 February 13, 2006 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