HomeMy WebLinkAbout07-602 LIGHTNERRobert Lightner
1879 Valley Road
Marysville, PA 17053
Dear Mr. Lightner:
ADVICE OF COUNSEL
December 26, 2007
07 -602
This responds to your letter of November 13, 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 newly -
elected township supervisor, whose wife currently serves as the township
secretary /treasurer, as to: (1) participating in the annual appointment of the township
secretary /treasurer; (2) participating in the appointment of the Administrative
Superintendent, who oversees the township secretary /treasurer; (3) participating in
matters related to the township secretary /treasurer's position; (4) participating in matters
related to the township's budget, benefit plans and non-uniform pension plan; or (5)
voting to appoint himself as chairman of the township board of supervisors or as the
township public safety superintendent.
Facts: You were recently elected to a six -year term as one of three members of
the Board of Supervisors ( "Board ") of Rye Township ( "Township "). You state that you
will assume office on January 2, 2008, at the Township's organization meeting. Your
wife, Daisy Lightner, has been employed as the Township Secretary /Treasurer for
almost fifteen years. You state that all full -time Township employees, including your
wife, are enrolled in the Township's non - uniform pension plan.
You express your understanding that your election to the position of Supervisor
does not itself constitute a conflict of interest. You pose the following specific questions:
(1) What must you do to avoid a conflict of interest when the Supervisors vote
at the organization meeting each January with respect to the appointment
of the Township Secretary/Treasurer;
(a) Whether you would be permitted to break a tie vote where you
would abstain from voting and one Supervisor would vote in favor
of your wife's appointment ointment as Secretary/Treasurer and the other
Supervisor would vote against your wife's appointment to said
position;
Lightner, 07 -602
December 26, 2007
Page 2
(b) Whether you would be required to submit to the person recording
the meeting minutes a separate memorandum for each conflict of
interest that would arise during the same meeting;
(2) Whether you would be permitted to vote to approve the monthly
Treasurer's report given by your wife, and whether you would be permitted
to participate in discussions or questions regarding the monthly
Treasurers Report where your wife's salary or benefits would not be
involved;
Whether you could sign the Township's accounts payable checks or
payroll checks where: (a) the accounts payable checks require the
signatures of the Township Secretary /Treasurer and two supervisors, and
may include payments to the Secretary /Treasurer as reimbursement for
mileage for running Township errands; (b) the payroll checks require two
signatures and are typically signed by the Secretary/Treasurer and
Administrative Superintendent; and (c) there may be situations where
another supervisor is not available to provide a required signature;
(4) Whether you would be permitted to vote on a matter in which you would
have a conflict of interest where one of the other two Supervisors would
be absent from the monthly meeting;
(5) Whether it would be a conflict of interest for you to vote on the approval of
monthly Board meeting minutes completed by your wife as the
Secretary/Treasurer;
(6) Whether you could participate in budget workshops, discussions about
and drafting of the annual budget, the vote on the annual budget, or the
adoption /signing of an annual Salary Resolution authorizing the
Secretary/Treasurer to set the wages for the first payroll in January, where
the salary of your wife and other Township employees would be set
through the budget process and the adoption of such Salary Resolution;
(7) Whether you would be permitted to vote on the hiring of additional
personnel for the Administrative Office;
(8) Whether you could discuss and vote on annual health /medical insurance
renewals where all full time employees would receive the same health
plan, and whether you could vote on the approval of the check or
electronic transfer to pay the plan expenses;
Whether you would be permitted to vote on and co -sign the check for
payment of the annual Minimum Municipal Obligation ( "MMO ") to the
Pennsylvania Municipal Retirement System ( "PMRS ") for the existing non-
uniform pension plan;
(10) Whether you could vote to appoint your wife as the "Applicant's Agent" for
purposes of Federal Emergency Management Agency ("FEMA ") and
Pennsylvania Emergency Management Agency ( "PEMA ") reimbursements
to the Township where your wife would receive no additional
compensation from the Township for serving in said position;
(11) Whether you would be permitted to: (a) vote on hiring an independent
auditing firm to perform the annual Township audits; (b) discuss the audit
report when it would be brought before the Board at a public meeting; or
(c) co -sign a check to pay for the audit;
(3)
(9)
Lightner, 07 -602
December 26, 2007
Page 3
(12) Whether you could discuss and vote on a request from the full -time
Township employees as to the purchase of "better" dental benefits than
those currently offered by the Township, where the employees would pay
the Township for the additional benefits through payroll deductions, and
such benefits would be available to all full -time employees willing to pay
for them;
(13) Whether you would be permitted to vote to appoint yourself as Public
Safety Superintendent, in which position you would oversee the local
police department but receive no additional compensation;
(14) Whether you could vote to appoint yourself as Chairman of the Board of
Supervisors, in which position you would conduct the Board meetings and
sign documents on behalf of the Board but receive no additional
compensation; and
(15) Whether you would be permitted to vote for the appointment of the
Administrative Superintendent where: (a) the Administrative
Superintendent oversees the Administrative Office, which includes the
position of Secretary /Treasurer; and (b) a stalemate would occur as to the
appointment of either of the other two Supervisors to the position.
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.
Upon taking office as a Township Supervisor, you would become a "public
official" subject to the provisions of the Ethics Act. See, 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
Lightner, 07 -602
December 26, 2007
Page 4
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 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.
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, a member of his immediate family, or a
business with which he or a member of his immediate family is associated.
The above statutory definition of "conflict" or "conflict of interest" contains two
exclusions, referred to herein 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.
Lightner, 07 -602
December 26, 2007
Page 5
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.
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.
In applying the above provisions of the Ethics Act to your inquiries, you are
advised that your spouse is a member of your "immediate family' as that term is defined
in the Ethics Act. Therefore, pursuant to Section 1103(a) of the Ethics Act, in your
capacity as a Township Supervisor, you would generally have a conflict of interest in
matters that would financially impact you, your spouse, or a business with which you or
your spouse is associated. In each instance of a conflict of interest, you would be
required to abstain fully and to satisfy the disclosure requirements of Section 1103(jj) of
the Ethics Act. The requirement for abstention in the event of a conflict would extend not
only to voting, but also to other uses of authority of office, such as discussing, conferring
with others, or lobbying for a particular result. See, Juliante, Order 809.
Having established the above general principles, your specific inquiries shall be
addressed.
In response to your first specific inquiry, you are advised as follows. You would
have a conflict of interest under Section 1103(a) of the Ethics Act as to matters involving
the appointment of the Township Secretary /Treasurer where your wife would be a
candidate for said position. In each instance of a conflict of interest, you would be
required to abstain fully from participation and to satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act. However, because the Board is a three - member
board, Section 1103(j) of the Ethics Act would permit you to vote to break a tie vote of
the other Supervisors despite such a conflict, provided you would first abstain and
disclose the conflict as required by Section 1103(j) of the Ethics Act. See, Pavlovic,
supra.
You are advised that when more than one conflict of interest would arise for you
during a meeting, the requirements of Section 1103(j) for disclosure of such conflicts in
a written memorandum filed with the person recording the meeting minutes could be
satisfied by one written memorandum, as long as such memorandum would fully
disclose the nature of all conflicts of interest arising during that meeting.
As to your second specific inquiry, you are advised that because the Board's
approval of the monthly Treasurer's Report would be part of a check - and - balance
system as to Township finances, you would generally have a conflict of interest with
Lightner, 07 -602
December 26, 2007
Page 6
regard to discussions, questions, or votes as to Treasurer's Reports prepared by your
wife, regardless of whether your wife's salary or benefits would be involved.
With respect to your third specific inquiry, you are advised as follows. You would
generally have a conflict of interest as to signing checks payable to your wife. However,
a conflict of interest would not exist as to signing checks for fixed or predetermined
payments as to which there would be no disputes. See, Krushinski, Order 168.
Thus, you are advised that you would generally have a conflict of interest under
Section 1103(a) of the Ethics Act as to signing any checks payable to your wife where
the payments would not be fixed or predetermined but would be subject to review, as for
example, payments for monthly mileage reimbursement. It is noted that pursuant to the
Second Class Township Code, your wife's compensation as Secretary /Treasurer is
determined by the Board of Supervisors. See, 53 P.S. §§ 65703, 65803. Provided that
you would abstain from participation in matters pertaining to the determination of the
compensation for the position of Secretary /Treasurer, you would not have a conflict of
interest in co- signing pre- fixed, routine, and uncontested checks payable to your wife for
compensation as the Secretary /Treasurer.
As noted above, in each instance of a conflict of interest, you would be required
to abstain fully from participation and to observe the disclosure requirements of Section
1103(j) of the Ethics Act. You are advised that the unavailability of another Supervisor
to sign checks would not affect the requirement of Section 1103(j) that you abstain from
participation in matters in which you would have a conflict of interest.
In response to your fourth specific inquiry, you are advised that for a matter in
which you would have a conflict of interest, Section 1103(j) of the Ethics Act would only
allow you to vote if the other two Supervisors would cast opposing votes, or if one of the
other two Supervisors would also have a conflict of interest under the Ethics Act. Cf.,
Confidential Opinion, 04 -003; Garner, Opinion 93 -004; DeLuca, Advice 06 -562.
As to your fifth specific inquiry, you are advised that Section 1103(a) of the Ethics
Act would not prohibit you from approving the minutes for Board meetings absent some
private pecuniary benefit to you, an immediate family member such as your wife, or a
business with which you or an immediate family member is associated.
With respect to your sixth specific inquiry, you are advised that you would have a
conflict of interest as to those portions of the budget process and Salary Resolution
process that would impact the setting of your wife's compensation. However, if the
other Supervisors would separately set your wife's compensation without your
involvement, you would thereafter be able to participate as to matters referencing but
not approving the compensation already set for your wife. Cf., Mattie, Advice 91 -508;
Teti, Advice 03 -502.
In response to your seventh specific inquiry, you are advised that absent a
private pecuniary benefit to you, your wife or another member of your immediate family,
you would not have a conflict of interest as to voting on the hiring of additional
personnel for the Administrative Office.
As to your eighth, ninth, and twelfth specific inquiries, you are advised as follows.
In Kablack, supra, the Commission addressed the criteria of the class /subclass
exception as follows:
The proper application of the class /subclass exclusion
hinges upon the correct identification of the subclass, as to
the first criterion, and the correct interpretation of the phrase,
"to the same degree," as to the second criterion. It is not a
Lightner, 07 -602
December 26, 2007
Page 7
simple matter to apply these criteria in a legally correct,
uniform fashion that accomplishes the purposes of the Ethics
Act in every possible scenario. We have identified the
following concerns.
In considering the first criterion, it would appear from
the broad statutory language that a "subclass" may be any
sort of group. Such broad language may create the potential
for an attempt to manipulate the identification of the subclass
in order to reach the result of no conflict. However, "The
object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General
Assembly," and ". . . the General Assembly does not intend
a result that is absurd, impossible of execution or
unreasonable." 1 Pa.C.S. §§ 1921, 1922. The Legislature
clearly did not intend for subclasses to be defined in absurd
or unreasonable ways. Rather, we determine that the
Legislature intended for this criterion to be satisfied where
the members of the proposed subclass are similarly situated
as the result of relevant shared characteristics.
In considering the second criterion, neither the Ethics
Act, the related regulations at 51 Pa. Code, nor the Statutory
Construction Act (see, 1 Pa.C.S. § 1991) define what is
meant by the phrase "to the same degree. ' If we construe
the phrase according to rules of grammar and "common and
approved usage" (see, 1 Pa.C.S. § 1903(a)), we may arrive
at a restrictive construction which could require that the
impact upon the members of the class /subclass be precisely
identical. See, e.q., BLACK'S LAW DICTIONARY 1 (7 ed.
1999); BLACK'S LAW DICTIONARY 381, 1203 (5 ed. 1979);
NEW WEBSTER'S DICTIONARY AND THESAURUS OF THE ENGLISH
LANGUAGE 252, 882 (1993). Again, the Legislature clearly
did not intend such a result, which would not only be absurd
and unreasonable, but would also render the exclusion
practically impossible to apply. See, 1 Pa.C.S. §§ 1921,
1922. We determine that the Legislature intended for this
criterion to be 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, Opinion 02 -003 at 4 -5.
As the Commission noted in Kablack, the proper identification of the subclass is
key to determining whether the class /subclass exclusion is applicable in a given
instance. Additionally, the proper identification of the subclass may vary for different
issues. See, Confidential Opinion, 04 -009.
For certain types of issues, such as the setting of compensation, your wife would
not fall within the class /subclass exception because, as Township Secretary /Treasurer,
she would be viewed as holding a unique position. Cf., Confidential Opinion, 04 -009.
However, you are advised that the class /subclass exception would apply and you
would not have a conflict of interest as to the annual health /medical insurance renewals
or payments for same, subject to the conditions that: (1) the health plan in which your
wife participates includes other full -time Township employees; and (2) the coverage that
your wife would receive under the plan would be no different than the coverage received
Lightner, 07 -602
December 26, 2007
Page 8
by the other full -time employees participating in the plan. Cf., Confidential Opinion, 04-
009.
Similarly, the class /subclass exception would apply and you would not have a
conflict of interest with regard to permitting Township employees an opportunity to
purchase, at their own expense, "better" dental benefits than those currently offered by
the Township, subject to the conditions that: (1) the plan in which your wife participates
includes other full -time Township employees; (2) the coverage that your wife receives
under the plan is no different than the coverage received by other full -time employees
participating in the plan; and (3) the identical opportunity to purchase better dental
benefits would be provided to all such employees under identical terms. Id.
With regard to voting on or co- signing payment(s) of the MMO to PMRS for the
Township's existing non - uniform pension plan, the submitted facts are insufficient to
enable a conclusive determination as to whether the de minimis exclusion or the
class /subclass exclusion would apply. Therefore, you are advised that you would have
a conflict of interest in such matters, and you would be required to abstain and observe
the disclosure requirements of Section 1103(j) of the Ethics Act, unless the de minimis
exclusion or the class /subclass exclusion to the statutory definition of "conflict" or
"conflict of interest" would be applicable. In each instance of a conflict of interest, you
would be required to abstain from participation and fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act.
In response to your tenth specific inquiry, you are advised as follows. Under the
submitted facts, your wife would receive no additional compensation from the Township
for serving as the Applicant's Agent for purposes of FEMA and PEMA reimbursements
to the Township. Absent a basis for a conflict of interest such as a private pecuniary
benefit to you or your wife, Section 1103(a) of the Ethics Act would not prohibit you from
voting to appoint your wife as the Applicant's Agent.
With respect to your eleventh specific inquiry, you are advised that you would
have a conflict of interest with regard to selecting, contracting with, or paying an
independent auditing firm to perform an annual Township financial audit, because such
auditors would participate in decision - making as to your wife's work. See, Confidential
Opinion, 02 -004; see also, Bassi, Opinion 86- 007 -R; Woodrinq, Opinion 90 -001; Elisco,
Opinion 00 -003; and onfidential Opinion, 05 -004 (involving reciprocal arrangements).
You would also have a conflict of interest under Section 1103(a) of the Ethics Act with
regard to participation as to the Township financial audit and would be required to
abstain from participation and to satisfy the disclosure requirements of Section 1103(j)
of the Ethics Act.
In response to your thirteenth and fourteenth specific inquiries, you are advised
that you would not have a conflict of interest with regard to voting to appoint yourself to
the positions of Public Safety Superintendent or Chairman of the Board of Supervisors.
See, 53 P.S. § 65602. However, in the event that you would have a conflict of interest
in a matter before you in such position(s), you would be required to abstain from
participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act.
In response to your fifteenth specific inquiry, you are advised that you generally
would have a conflict of interest in voting to appoint the Administrative Superintendent
where such individual would have oversight of your wife as Township
Secretary/Treasurer. However, Section 1103(j) of the Ethics Act would permit you to
vote to break a tie vote of the other Supervisors as to the appointment of either of them
to such position, provided you would first abstain and disclose the conflict as required
by Section 1103(j) of the Ethics Act. See, Pavlovic, supra.
Lightner, 07 -602
December 26, 2007
Page 9
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.
Conclusion: Upon taking office as a Supervisor for Rye Township ( "Township "),
you would become 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 spouse, who
serves as the Township Secretary /Treasurer, is a member of your "immediate family" as
that term is defined by the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, as
a Township Supervisor, you would generally have a conflict of interest in matters that
would financially impact you, your spouse, or a business with which your or your spouse
is associated, unless the de minimis exclusion or class /subclass exclusion to the
statutory definition of "conflict" or "conflict of interest" would be applicable. 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. Where you would have a
conflict of interest and the two remaining Supervisors would deadlock, you would be
permitted to vote to break the tie rovided you would first abstain and disclose the
conflict as required by Section 1103(j) of the Ethics Act. The requirements of the Ethics
Act as set forth above must be observed. 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