HomeMy WebLinkAbout08-500 KNOPPTimothy J. Knopp
Councilman Elect
Borough of West Newton
112 South Water Street
West Newton, PA 15089
Dear Mr. Knopp:
ADVICE OF COUNSEL
January 3, 2008
08 -500
This responds to your letter of November 27, 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 borough council member, whose fiancee currently serves as the borough
secretary /treasurer, as to: (1) voting to approve the borough payroll; or (2) participating
in other matters before the borough council.
Facts: You state that you have been elected as a Council Member for the
Borough of West Newton ( "Borough ") and will serve in that position beginning in
January 2008. Your fiancee, Pamela M. Humenik ( "Ms. Humenik'), currently serves as
the Secretary /Treasurer for the Borough. Although you and Ms. Humenik are not
married and do not live together, you jointly own a seasonal home.
You ask whether the Ethics Act would require you to abstain from the monthly
vote to approve the Borough payroll or from participating in any other matters before
Borough Council. You state that you would abstain from any votes regarding wage
increases or contractual issues.
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 Borough Council Member, you would become a public
official subject to the provisions of the Ethics Act.
Knopp, 08 -500
January 3, 2008
Page 2
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 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.
Knopp, 08 -500
January 3, 2008
Page 3
"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.
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 specific inquiry, you are
advised as follows.
Subject to the statutory exceptions to the definition of "conflict" or "conflict of
interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before Borough Council 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. As noted above, the term "immediate family" is defined to include
a parent, spouse, child, brother or sister. Ms. Humenik, as your fiancee, is not a
member of your immediate family. Therefore, your relationship with your fiancee in and
of itself would not form the basis of a conflict of interest for you under the Ethics Act in
matters before Borough Council.
As for your joint ownership with Ms. Humenik of a seasonal home, the submitted
facts do not disclose any financial arrangements or obligations with respect to the
home. Therefore, this Advice is limited to generally advising that you would not have a
conflict of interest with regard to participating or voting in matters involving Ms. Humenik
unless, by so doing, you would financially benefit yourself. Cf., Confidential Opinion,
00 -007.
You are advised, however, that when Ms. Humenik would become your spouse,
she would be considered a member of your "immediate family" as that term is defined in
the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in your capacity as a
Borough Council Member, you would then generally have a conflict of interest in matters
before Borough Council that would financially impact you or your spouse. Cf., Lightner,
Advice 07 -602.
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.
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.
Knopp, 08 -500
January 3, 2008
Page 4
Conclusion: Upon taking office as a Council Member for the Borough of West
Newton ( "Borough "), 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.
Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest,"
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in
matters before Borough Council 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. Under the submitted facts that your fiancee, Pamela M. Humenik ( "Ms.
Humenik "), currently serves as the Borough Secretary/Treasurer, and that you and Ms.
Humenik jointly own a seasonal home, you are advised as follows. As your fiancee, Ms.
Humenik is not a member of your "immediate family" as that term is defined in the
Ethics Act. Therefore, your relationship with your fiancee in and of itself would not form
the basis of a conflict of interest for you under the Ethics Act in matters before Borough
Council. As for your joint ownership with Ms. Humenik of a seasonal home, the
submitted facts do not disclose any financial arrangements or obligations with respect to
the home. Therefore, this Advice is limited to generally advising that you would not
have a conflict of interest with regard to participating or voting in matters before
Borough Council involving Ms. Humenik unless, by so doing, you would financially
benefit yourself. At such time that Ms. Humenik would become your spouse, she would
be considered a member of your "immediate family" as that term is defined in the Ethics
Act. Pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Borough
Council Member, you would then generally have a conflict of interest in matters before
Borough Council that would financially impact you or your spouse. 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. 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