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HomeMy WebLinkAbout06-557 Litwin (2)Paul Litwin, Esquire 24 East Tioga Street Tunkhannock, PA 18657 Dear Mr. Litwin: ADVICE OF COUNSEL May 19, 2006 06 -557 This responds to your letter of March 22, 1006, 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 borough council member from working as a part -time borough employee. Facts: You are the Solicitor for Factoryville Borough ( "Borough "). The Borough has one full -time employee. Throughout the course of the year, especially during snow events, the Borough employee requires part -time assistance. William Edwards ( "Edwards "), a Borough Council Member, has expressed an interest in filling the part -time position assisting the full -time Borough employee. You opine that if the Borough advertises for the position and Edwards abstains from any decision - making and provides the reason for abstention in writing, he may apply for the position. It is administratively noted that the population of the Borough is less than 3,000. Given the foregoing facts, you ask whether Edwards may apply to be a part -time Borough employee without transgressing the Ethics Act. 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. Litwin /Factoryville Borough, 06 -557 May 19, 2006 Page 2 As a Borough Council Member, Edwards is a "public official" as that term is defined in the Ethics Act, and hence he is 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. "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 Litwin /Factoryville Borough, 06 -557 May 19, 2006 Page 3 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 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. In response to the specific question that you have posed, based upon the factual assumption that the population of the Borough is less than 3,000, the Ethics Act would not prohibit Edwards from applying to be a part -time Borough employee. However, pursuant to Section 1103(a) of the Ethics Act, Edwards would be prohibited from participating in actions of Borough Council pertaining to the part -time position for which he intends to apply. See, Gerber, Order 1192. 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 Council would hire Edwards to that position. See, Pepper, Opinion 87 -008. If Edwards would be hired to the part -time position, he would have a conflict of interest as to employment issues pertaining to himself individually such as his compensation, evaluation(s), raises and other matters that would financially impact himself. Edwards would also generally have a conflict of interest as to matters affecting his superior(s) within the Borough. See, Bassi, Opinion 86- 007 -R, Woodrinq, Opinion 90 -001, Elisco, Opinion 00 -003, and Opinion, 05 -004. The basis for such conflicts would be that his superior(s) would exercise authority over Edwards as to his Borough employment, while as a Borough Council Member, Edwards would exercise authority over the said superior(s). Such a reciprocal scenario would generally result in a conflict of interest for Edwards under Section 1103(a) of the Ethics Act in matters pertaining to his superior(s). Id. Litwin /Factoryville Borough, 06 -557 May 19, 2006 Page 4 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) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under 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 for Factoryville Borough ( "Borough "), William Edwards ( "Edwards ") 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. Based upon the factual assumption that the population of the Borough is less than 3,000, the Ethics Act would not prohibit Edwards from applying to be a part -time Borough employee. However, pursuant to Section 1103(a) of the Ethics Act, Edwards would be prohibited from participating in actions of Borough Council pertaining to the part -time position for which he intends to apply. 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 Council would hire Edwards to that position. If Edwards would be hired to the part -time position, he would have a conflict of interest as to employment issues pertaining to himself individually such as his compensation, evaluation(s), raises and other matters that would financially impact himself. Edwards would also generally have a conflict of interest as to matters affecting his superior(s) within the Borough. 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