HomeMy WebLinkAbout08-504 BitzelSteven A. Bitzel
1410 Fish And Game Rd.
Littlestown, PA 17340
Dear Mr. Bitzel:
ADVICE OF COUNSEL
January 16, 2008
08 -504
This responds to your letters of November 27, 2007, and December 7, 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
supervisor, who is a member of one of two volunteer fire companies that serve the
township, with regard to voting on a resolution or other matter that would affect either of
the aforesaid volunteer fire companies.
Facts: As a newly - elected Supervisor for Germany Township ( "Township "),
Adams County, you seek an advisory from the State Ethics Commission based upon
facts that may be fairly summarized as follows.
The Township is served by two volunteer fire companies, Alpha Fire Company
( "Alpha ") and Kingsdale Fire Department ("Kingsdale"). Alpha, which serves about
three - quarters of the Township residents, is located in Littlestown Borough, and
Kingsdale is located in the Township. Both fire companies derive from the Township
their authority to operate within the confines of the Township. You state that the
Township pays for Kingsdale's workers' compensation insurance but does not do the
same for Alpha. While both of the fire companies receive funds from the Township
each year, no formula is used to determine how funds are distributed between the
companies. You state that from what you can determine, the Township has proposed to
allot $20,000 for Fire Operations and $20,000 for EMS Operations to Alpha for the next
year. You further state that at this time, no funding is proposed for Kingsdale since it
has not provided sufficient accounting for the prior year's allotment from the Township.
You state that the Township has not exercised any control as to how monies
appropriated to Alpha and Kingsdale have been spent. You express your view that the
Second Class Township Code gives the Township Supervisors the authority to control
or oversee how the aforesaid fire companies spend funds allotted to them by the
Township.
Bitzel, 08 -504
January 16, 2008
Page 2
You are a regular member of Alpha, with which you serve in the capacity of a
firefighter /EMT. You state that you do not serve in any officer position within Alpha, nor
do you have the authority to direct operations or make corporate decisions. As a
regular member, you serve on Alpha's Applicant Committee. The Applicant Committee
interviews prospective members, completes criminal and personal background checks
on such individuals, and then makes recommendations to Alpha's general body for a
majority vote. You state that the Applicant Committee serves only as an advisory panel
and does not have the authority to deny anyone's application for membership with
Alpha.
Based upon the above submitted facts, you ask whether, in your capacity as a
Township Supervisor, you would have a conflict of interest with regard to voting on a
resolution or other matter that would affect either of the aforesaid volunteer fire
companies.
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.
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
Bitzel, 08 -504
January 16, 2008
Page 3
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.
"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.
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.
Bitzel, 08 -504
January 16, 2008
Page 4
Having established the above general principles, your specific inquiry shall be
addressed.
First, you are advised that in your capacity as a Township Supervisor, you would
generally have a conflict of interest in matters that would financially benefit you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated. You would also generally have a conflict of interest in
matters that would financially benefit a business with which you are associated through
a detriment to a competitor of such a business. See, Pepper, Opinion 87 -008. 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.
Based upon the submitted fact that your role with Alpha is limited to that of a
regular volunteer member, you are advised that Alpha is not a business with which you
are associated within the meaning of that term as defined by the Ethics Act. Since
Alpha is not a business with which you are associated, you are advised that you would
not have a conflict of interest under Section 1103(a) of the Ethics Act in voting on a
resolution or other matter(s) that would financially impact Alpha and /or Kingsdale 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.
In light of the above, it is not necessary to determine whether Alpha would be
considered a "business" as that term is defined by 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 Second Class Township Code.
Conclusion: Upon taking office as a Supervisor for Germany Township
( "Township "), Adams County, 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. In your capacity as a Township Supervisor, you would generally have a
conflict of interest in matters that would financially benefit you, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated. You would also generally have a conflict of interest in matters that would
financially benefit a business with which you are associated through a detriment to a
competitor of such a business. 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. Based upon the submitted facts that: (1 ) the
Township is served by two volunteer fire companies, Alpha Fire Company ("Alpha ") and
Kingsdale Fire Department ( "Kingsdale "); (2) that you are a firefighter /EMT with Alpha;
(3) that you are a member but not an officer of Alpha; (4) that you serve on Alpha's
Applicant Committee, which is advisory; and (5) that your role with Alpha is limited to
that of a regular volunteer member, Alpha is not a business with which you are
associated within the meaning of that term as defined by the Ethics Act. Therefore, you
would not have a conflict of interest under Section 1103(a) of the Ethics Act in voting on
a resolution or other matter(s) that would financially impact Alpha and /or Kingsdale, 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. 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.
Bitzel, 08 -504
January 16, 2008
Page 5
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