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HomeMy WebLinkAbout06-604 FalatovichGary A. Falatovich Attorney at Law Keystone Commons 11 215 McKeon Way Greensburg, PA 15601 Dear Mr. Falatovich: ADVICE OF COUNSEL December 6, 2006 06 -604 This responds to your letter of October 31, 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 township supervisor, whose son is employed with the township's road crew on a probationary basis, with regard to: 1) participating in labor contract negotiations between the township and the union that represents the road crew employees; 2) receiving information from another supervisor who would be participating in the collective bargaining sessions and engaging in deliberations with the other township supervisors with regard to the acceptability of the contract terms being discussed; and 3) voting on a finalized collective bargaining agreement between the township and the union. Facts: As Solicitor for Salem Township ( "Township ") in Westmoreland County, you request an advisory on behalf of one of the Township's three Supervisors, Robert Zundel ( "Supervisor Zundel "). Supervisor Zundel was elected to office in the fall of 2004 and was sworn into office in January 2005. He did not previously hold an elected or appointed office in the Township. The Township has several full -time workers on its road crew. The road crew is represented in contract negotiations by a division of the United Autoworkers Union ( "Union "). In June of 2006, the Township expanded its road crew so that it would be able to perform and assist with paving projects. Supervisor Zundel's son, Robert Zundel, was one of the candidates for a position on the expanded road crew. Supervisor Zundel did not participate in interviewing his son or engage in any conversations or discussions with the other two Supervisors concerning his son's application for employment or potential hiring. You state that the other Supervisors believed that Robert Zundel was one of the best candidates for a position with the road crew and that accordingly, they voted to hire him for a position on the road crew for a probationary period consistent with the terms of the collective bargaining agreement between the Township and the Union. At that time, another individual was also hired for Falatovich /Zundel, 06 -604 December 6, 2006 Page 2 the road crew on a probationary basis. Supervisor Zundel abstained from participating in both the motion and the vote to hire his son for the position on the road crew. Ronald Martz, who is one of the other Township Supervisors and the duly appointed full -time roadmaster, performs most of the supervisory tasks over the road crew. However, Supervisor Zundel, serving in the capacity as a part -time Township roadmaster, directs the road crew work force under some circumstances. The Township is beginning the process of negotiating with the Union for a new labor contract. You state that it appears that the Township will be financially capable of retaining for full -time employment on the road crew both Robert Zundel and the other individual hired on a probationary basis. Accordingly, it is possible that Robert Zundel and the other individual will become part of the Union and thereby benefit from any contract between the Township and the Union. To date, Supervisor Zundel has not participated in any discussions or votes on the labor contract. Based upon the submitted facts, you pose the following specific inquiries: 1. Would the Ethics Act permit Supervisor Zundel to participate in contract negotiations with the Union and if so, in what nature and to what extent would he be permitted to participate? 2. If a Supervisor other than Supervisor Zundel would be handling the negotiations with the Union, would Supervisor Zundel be permitted to receive information gleaned from those collective bargaining sessions and engage in deliberations with the other Supervisors concerning the acceptability of the terms being discussed? 3. Would Supervisor Zundel have a conflict of interest in voting on a proposed collective bargaining agreement due to his son's employment on the road crew, or would he be permitted to vote on such an agreement pursuant to the "class /subclass exclusion" to a finding of a conflict of interest? 4. In the event that the other two Supervisors would have a difference of opinion with respect to entering into a proposed collective bargaining agreement and would cast opposing votes, would Supervisor Zundel be permitted to participate and vote on said agreement? 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. As a Member of the Township's Board of Supervisors, Supervisor Zundel 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 Falatovich /Zundel, 06 -604 December 6, 2006 Page 3 (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 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 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. 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. 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 Falatovich /Zundel, 06 -604 December 6, 2006 Page 4 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). If a conflict exists, 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 in that event participation 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 this case, Supervisor Zundel's son is a member of his "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Supervisor Zundel would generally have a conflict of interest in matters that would financially benefit himself, a member of his immediate family such as his son, or a business with which he or a member of his immediate family is associated. The seminal Commission decision that applies Section 1103(a) under facts similar to those that you have submitted is Van Rensler, Opinion 90 -017. The issue in Van Rensler was whether the Ethics Act prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were represented by the bargaining units. The Commission concluded that the Ethics Act would not restrict the school directors from voting on the finalized agreement, but that the school directors could not take part in the negotiations leading to the finalized agreement. The Commission held that the school directors could vote on the finalized agreement because of the exclusion in the definition of "conflict" or "conflict of interest" which applies if the immediate family member is a member of a subclass consisting of an industry, occupation or other group containing more than one member and the immediate family member is affected exactly as the other members of the subclass. The Commission held that as long as the two prerequisites for applying the exclusion were met, the school directors could vote on the final collective bargaining agreement. However, the Commission held that the Ethics Act would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated." Id. at 4 -5. Thus, a fundamental focus of the Van Rensler Falatovich /Zundel, 06 -604 December 6, 2006 Page 5 Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. Having set forth the above principles, your specific inquiries shall be addressed. It is initially noted that the submitted facts do not clearly disclose whether the individuals employed with the road crew in a probationary status would be covered by or benefit from the collective bargaining agreement between the Township and the full - time road workers who are members of the Union. Therefore, it shall be factually assumed for purposes of this advisory that the terms of the collective bargaining agreement between the Township and the Union would apply to both the full -time road crew workers and the probationary employees. With regard to your first and second inquiries, you are advised as follows. Based upon Van Rensler, Supervisor Zundel would be precluded from participating in the negotiations regarding the collective bargaining agreement with the Union or from receiving confidential information regarding the negotiations. The Ethics Act would also preclude Supervisor Zundel from engaging in deliberations with the other Supervisors concerning the acceptability of the contract terms being discussed at the negotiating sessions or from obtaining information from the other Supervisors about the direction the Board of Supervisors is going with the negotiations. However, Supervisor Zundel would not transgress Section 1103(a) of the Ethics Act by receiving updates concerning negotiations that are discussed in public sessions. With regard to your third inquiry and fourth inquiries, you are advised as follows. Supervisor Zundel could vote on the finalized agreement between the Township and the Union if the class /subclass exclusion would apply. In order for the class /subclass exclusion to apply, the immediate family member must be in a class /subclass consisting of more than just one person, with the immediate family member being affected to the same degree as the other members of the class /subclass. See, Davis, Opinion 89 -012. Assuming these two conditions would be met, that is, Supervisor Zundel's son would be in a class /subclass consisting of more than just one person and would be affected to the same degree as the other members of the class /subclass, Supervisor Zundel would be permitted to vote on the finalized collective bargaining agreement. Where the class /subclass exclusion would not apply such that a conflict of interest would exist, Supervisor Zundel would still be permitted to participate under certain limited circumstances. In Garner, Opinion 93 -004, the Commission considered the issue of whether, under Section 3(j) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the Falatovich /Zundel, 06 -604 December 6, 2006 Page 6 public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In applying Garner to the instant matter, you are advised that under Section 1103(j) of the Ethics Act, Supervisor Zundel would be permitted to second a motion only in a situation where: 1) the two remaining Supervisors would have opposing views; or 2) one of the other two Supervisors would be absent from the meeting. Allowing Supervisor Zundel to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Supervisors cast opposing votes, Supervisor Zundel would be permitted to vote to break the tie provided that he would satisfy the disclosure requirements of Section 1103(j). However, he could not speak to the motion or advocate his view in the matter; Section 1103(j) would only allow him to vote under the above circumstances. This Advice is limited to addressing the applicability of Sections 1103(a) and 1103(j) 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 respective municipal code. Conclusion: As a Supervisor for Salem Township ( "Township "), Robert Zundel ( "Supervisor Zundel ") 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. Supervisor Zundel's son, who is employed with the Township's road crew on a probationary basis, is a member of his "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Supervisor Zundel would generally have a conflict of interest in matters that would financially benefit himself, a member of his immediate family such as his son, or a business with which he or a member of his immediate family is associated. Based upon Van Rensler, supra, Supervisor Zundel would be prohibited from participating in the negotiations regarding the collective bargaining agreement between the Township and the United Auto Workers' Union ( "Union "), which represents the road crew employees, or from receiving confidential information regarding the negotiations. The Ethics Act would also preclude Supervisor Zundel from engaging in deliberations with the other Supervisors concerning the acceptability of the contract terms being discussed at the negotiating sessions or from obtaining information from the other Supervisors about the direction the Board of Supervisors is going with the negotiations. However, Supervisor Zundel would not transgress Section 1103(a) of the Ethics Act by Falatovich /Zundel, 06 -604 December 6, 2006 Page 7 receiving updates concerning negotiations that are discussed in public sessions. Supervisor Zundel could vote on the finalized collective bargaining agreement between the Township and the Union if the class /subclass exclusion would apply. In order for the class /subclass exclusion to apply, Supervisor Zundel's son must be in a class /subclass consisting of more than just one person and must be affected to the same degree as the other members of the class /subclass. Where the class /subclass exclusion would not apply such that a conflict of interest would exist, Supervisor Zundel would still be permitted to participate under certain limited circumstances. Under Section 1103(j) of the Ethics Act, Supervisor Zundel would be permitted to second a motion only in a situation where: 1) the two remaining Supervisors would have opposing views; or 2) one of the other two Supervisors would be absent from the meeting. Allowing Supervisor Zundel to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Supervisors cast opposing votes, Supervisor Zundel would be permitted to vote to break the tie provided that he would satisfy the disclosure requirements of Section 1103(j). However, he could not speak to the motion or advocate his view in the matter; Section 1103(j) would only allow him to vote under the above circumstances. 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