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HomeMy WebLinkAbout07-565 MermelsteinJules J. Mermelstein 18 Northview Drive Glenside, PA 19038 -1318 Dear Mr. Mermelstein: ADVICE OF COUNSEL August 6, 2007 07 -565 This responds to your letter of June 29, 2007, 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 prohibitions or restrictions upon a township commissioner as to participating /voting on land development issues regarding a school district from which the township commissioner has accepted an offer of employment. Facts: As a Member and Vice President of the Board of Commissioners of Upper Dublin Township ( "Township "), you request an advisory from the State Ethics Commission based upon submitted facts that may be fairly summarized as follows. In March of 2007, voters approved a request by the Upper Dublin School District ( "School District ") to build a new high school at a cost of 119 million dollars. The high school is estimated to be completed in 2012. You state that the School District will have to seek land development approval from the Township Board of Commissioners. You further state that given that the Township building is across the street from the high school, the Township and the School District might work together to create a town center development. You have been employed as a social studies teacher in a different school district. You have been offered, and have decided to accept, a teaching position with the School District beginning in September 2007. You state that the salary and benefits for your prospective teaching position with the School District are controlled by a contract between the teachers' union and the School District. You further state your employment as a social studies teacher with the School District, including the compensation you will receive in said position, will not be affected by the building of the high school or by a failure to build the high school. You seek advice as to whether the Ethics Act would require you, in your position as a Member and Vice President of the Township Board of Commissioners, to recuse yourself from any consideration of the aforesaid land development matters involving the School District. Mermelstein, 07 -565 August 6, 2007 Page 2 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. It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, an advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an 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 the Township Board of Commissioners, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of the Ethics Act. 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. 65 Pa.C.S. §§ 1103(a), (j). (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. Mermelstein, 07 -565 August 6, 2007 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 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 voting conflict, Section 1103(j) of the Ethics Act requires the public official /public 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. 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. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide in part that no person shall offer to a public official /public employee anything of Mermelstein, 07 -565 August 6, 2007 Page 4 monetary value 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. 65 Pa.C.S. §§ 1103(b), (c). 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. In applying Section 1103(a) of the Ethics Act to your inquiry, you are advised that you would generally have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Since the School District is a political subdivision and not a "business" as that term is defined by the Ethics Act, the School District is not a business with which you are associated. See, Warso, Order 974. Therefore, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Commissioners that would financially impact the School District but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01 -005; McCarrier, Opinion 98- 005; Warso, supra. Under the submitted facts, neither your employment as a social studies teacher with the School District nor your compensation for said position would be impacted by the building of a new high school, or by a failure to build a new high school. Absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you from participating in or voting on the aforesaid land development matters involving the School District. 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 First Class Township Code, the Public School Code, or case law pertaining to bias. It is recommended that you obtain legal advice regarding such sources that are beyond the scope of this advisory. Conclusion: As a Member and Vice President of the Board of Commissioners of Upper Dublin Township ("Township"), 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. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Since the Upper Dublin School District ( "School District "), from which you have accepted an employment position as a social studies teacher, is a political subdivision and not a "business" as that term is defined by the Ethics Act, the School District is not a business with which you are associated. You would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Commissioners that would financially impact the School District but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you from participating in or voting on land development matters involving the School District. Mermelstein, 07 -565 August 6, 2007 Page 5 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, Robin M. Hittie Chief Counsel