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HomeMy WebLinkAbout08-517 GRECOColin R. Clayberger 274 Klinger Road Sunbury, PA 17801 ADVICE OF COUNSEL February 22, 2008 08 -517 Dear Mr. Clayberger: This responds to your letter received January 23, 2008, 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 member of a three - member board of township supervisors, whose spouse serves as solicitor for the township, with regard to: (1) seconding a motion to retain her spouse as township solicitor, where the other two township supervisors would have opposing views; or (2) voting on a motion to retain her spouse as township solicitor, where the other two township supervisors would cast opposing votes. Facts: As a Member and Chairman of the three - member Board of Supervisors ( "Board ") of Rockefeller Township ( "Township "), located in Northumberland County, Pennsylvania, you have been authorized by Board Member Paula Greco ( "Mrs. Greco') to request an advisory from the State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Mrs. Greco is the spouse of Edward Greco ( "Mr. Greco "). Mr. Greco has served as Solicitor for the Township for the past twelve years. You state that there have been no complaints lodged against Mr. Greco by a Board Member or any Township resident with regard to Mr. Greco's administration of his duties At the Township organization meeting held on January 7, 2008, Joe Mull ( "Mr. Mull "), who is the third Member of the Board, made a motion not to retain Mr. Greco as Solicitor for the Township. You state that you were not able to get a second to the motion. You ask whether the Ethics Act would permit Mrs. Greco to participate and vote at the next Board meeting under the following procedure: (1) You would make a motion to retain Mr. Greco as Solicitor for the Township; (2) Since Mr. Mull is opposed, Mrs. Greco would explain her conflict of interest and submit a written memorandum as a public record, and then, Mrs. Clayberger, 08 -517 February 22, 2008 Page 2 Greco would second your motion to bring it to the floor for a vote; (3) When you would call for a vote, you would vote in the affirmative and Mr. Mull would vote in the negative, with Mrs. Greco abstaining; (4) You would then ask for a revote and advise Mrs. Greco that she could at that point vote in the affirmative or negative to break the tie. Citing Section 1103(j) of the Ethics Act, Garner, Opinion 93 -004, and Pavlovic, Opinion 02 -005, you express your view that the Ethics Act would permit Mrs. Greco to participate and vote at the next Board meeting as set forth above. 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 Township Supervisor, Mrs. Greco is 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 permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Clayberger, 08 -517 February 22, 2008 Page 3 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, 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, supra. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Mrs. Greco's spouse is a member of her "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in her public capacity as a Supervisor, Mrs. Greco would generally have a conflict of interest in matters that would financially impact her, her spouse, or a business with which she or her spouse is associated. Mrs. Greco would specifically have a conflict of interest in matters pertaining to the appointment of a Township Solicitor where Mr. Greco would be considered, or Clayberger, 08 -517 February 22, 2008 Page 4 would be among those considered, for said position. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mrs. Greco would be required to abstain fully from participation in each instance of a conflict of interest. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.q., Bloss, Order 869; Garner, supra; Pavlovic, Opinion 02-005. In Garner, supra, the Commission considered the issue of whether, under Section 1103(j) of the Ethics Act, a township supervisor serving on a three member board would be permitted to second a motion despite 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, supra, the Commission first noted that seconding a motion is a use of authority of office. See, Garner, supra. The Commission then stated: However, the General Assembly in enacting Section [1103(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 [1103()] 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 public official could then vote provided the disclosure requirements are satisfied. Garner, Opinion 93 -004 at 6. The Commission concluded that Section 1103(j) of the Ethics Act would allow a township supervisor serving on a three - member board to second a motion where the two remaining supervisors would have opposing views or where one of the other two supervisors would be 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 scenario that you have proposed, you are advised as follows. Because the Board consists of three members, Mrs. Greco would be permitted to second a motion to appoint /reappoint Mr. Greco as Township Solicitor where you and Mr. Mull would have opposing views. Allowing Mrs. Greco to second the motion under such circumstances would put the matter in a posture for a vote. As long as Mrs. Greco would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j), Mrs. Greco would then be permitted to vote to break the tie if you and Mr. Mull would cast opposing votes. However, Mrs. Greco could not otherwise use the authority of office, such as by advocating her view, in the matter. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Member of the three - member Board of Supervisors ( "Board ") of Rockefeller Township ( "Township "), located in Northumberland County, Pennsylvania, Paula Greco ( "Mrs. Greco ") 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. Mrs. Greco's spouse, Edward Greco, who currently serves as Solicitor for the Township, is a member of Mrs. Greco's "immediate family" as that term is defined in the Ethics Act. Clayberger, 08 -517 February 22, 2008 Page 5 Pursuant to Section 1103(a) of the Ethics Act, in her public capacity as a Township Supervisor, Mrs. Greco would generally have a conflict of interest in matters that would financially impact her, her husband, or a business with which she or her husband is associated. Mrs. Greco would specifically have a conflict of interest in matters pertaining to the appointment of a Township Solicitor where Mr. Greco would be considered, or would be among those considered, for said position. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mrs. Greco would be required to abstain fully from participation in each instance of a conflict of interest. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. Based upon the submitted facts that you are a Member and Chairman of the Board, and that the third Board Member, Joe Mull ( "Mr. Mull "), opposes the reappointment of Mr. Greco as Township Solicitor, you are advised as follows. Because the Board consists of three members, Mrs. Greco would be permitted to second a motion to appoint /reappoint Mr. Greco as Township Solicitor where you and Mr. Mull would have opposing views. Allowing Mrs. Greco to second the motion under such circumstances would put the matter in a posture for a vote. As long as Mrs. Greco would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j), Mrs. Greco would then be permitted to vote to break the tie if you and Mr. Mull would cast opposing votes. However, Mrs. Greco could not otherwise use the authority of office, such as by advocating her view, in the matter. 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