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HomeMy WebLinkAbout08-546 CareyAlan S. Carey 60 Municipal Road Hanover, PA 17331 Dear Mr. Carey: ADVICE OF COUNSEL April 30, 2008 08 -546 This responds to your letter of March 24, 2008, by which you requested an advisory from the Pennsylvania 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 in his private capacity leases a property to a joint police commission that governs a regional police department formed by the township and two other municipalities pursuant to an agreement for joint police services, with regard to: (1) participating in the formal negotiations and vote on the approval of a new labor contract between said joint police commission and the regional police association; or (2) participating in and voting on the potential termination or renegotiation of the aforesaid agreement for joint police services. Facts: As an elected member of the Board of Supervisors of Berwick Township, ( "the Township "), located in Adams County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The Township is a member of the Eastern Adams Regional Police Department "EARP "). EARP is governed by the Eastern Adams Regional Police Commission "Police Commission "), which body was established by an Agreement for Joint Police ervices (hereinafter referred to as the Agreement") entered into by the Township and two other municipalities, Oxford Township and New Oxford Borough. You note that pursuant to Section 3 of the Agreement, the Agreement continues indefinitely unless terminated: (1) by the consent of the member municipalities; (2) by unanimous vote if at any time there is no labor agreement; or (3) after 10 years by one member municipality giving notice of the intent to terminate the Agreement. You have submitted an unexecuted copy of the Agreement, which is incorporated herein by reference. Carey, 08 -546 April 30, 2008 Page 2of6 It is administratively noted that you previously obtained an Advice of Counsel, Carey, Advice 04 -589, issued August 31, 2004, which Advice of Counsel concluded, in part: Conditioned upon the assumptions that: (1) there would be no improper understandings under Section 1103(b) /Section 1103(c) of the Ethics Act, and (2) you would not use your public position as a Township Supervisor to advance your private business dealings, the Ethics Act would not prohibit you from acting in a purely private capacity to enter into a lease agreement with the Police Commission established by the Township, Oxford Township and New Oxford Borough. Given that there is a reasonable and legitimate expectation that a business relationship will form between you and the Police Commission, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters before the Township involving the Police Commission or the Eastern Adams Regional Police Department ( "EARP "). You would specifically have a conflict of interest in matters before you as a Township Supervisor pertaining to the lease of facilities by the Police Commission. Any payment(s) or contribution(s) by the Township to the Police Commission would present a conflict of interest for you to the extent they would impact upon the Police Commission's ability to rent your facility or to pay rent for your facility.... Carey, Advice 04 -589 at 6 (Emphasis in the original). You state that you entered into a formal lease agreement (hereinafter referred to as the Lease Agreement ") with the Police Commission for a property that currently serves as the headquarters for EARP. You further state that pursuant to Advice 04 -589, you have abstained from voting in matters involving the Police Commission and EARP and have made the applicable disclosures for such abstentions. At present, there is a labor contract between the Police Commission and the Eastern Adams Regional Police Association ( "Police Association "). The labor contract is scheduled to expire on December 31, 2009. You anticipate that prior to the expiration of the current labor contract, the Police Commission will negotiate with the Police Association for a new labor contract. You state that while the Police Commission and the Police Association would be the specific parties to such a contract, the member municipalities of EARP, including the Township, could discuss certain provisions during the negotiation period and ultimately vote with regard to a final negotiated labor contract. Based upon the above submitted facts, you pose the following specific inquiries: 1. Whether you would be permitted to participate in the formal negotiations and vote on the approval of a new labor contract between the Police Commission and the Police Association; and 2. Whether you would be permitted to participate in and vote on the potential termination or renegotiation of the Agreement. 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 Carey, 08 -546 April 30, 2008 Page 3 of 6 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, you are 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. 65 Pa.C.S. §§ 1103(a), (j). The following terms that relate to Section 1103(a) 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 Carey, 08 -546 April 30, 2008 Page 4of6 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. 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 conflict of interest, the public official /public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. If a business with which the public official /public employee is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; Miller, Opinion 89 -024. Although a pecuniary benefit flowing solely to a governmental body 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 -008; Warso, Order 974), where a governmental body or political subdivision would be a client of the public official /public employee, or a client of a business with which the public official /public employee is associated, such client relationship itself would form the basis for a conflict of interest in matters involving the client. Cf., Kannebecker, supra; Brueninq, Advice 02 -606. In applying the above provisions of the Ethics Act to the instant matter, you are advised that due to your business relationship with the Police Commission, generally you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the Police Commission. Cf., Kannebecker, supra; Brueninq, supra. In each instance of a Carey, 08 -546 April 30, 2008 Page 5 of 6 conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, supra. In each instance of a voting conflict, you would be required 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. Having established the above general principles, your specific inquiries shall now be addressed. In response to your first specific inquiry, you are advised that you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the formal negotiations or vote on a new labor contract between the Police Commission and the Police Association. Cf., Kannebecker, supra; Brueninq, supra. In each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your second specific inquiry, you are advised as follows. If you would participate /vote in favor of terminating the Agreement, such action would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act as long as any financial impact upon you, a business with which you are associated, or the Police Commission would be in the nature of a financial detriment. If you would participate /vote in opposition to terminating the Agreement, your official actions would form the basis for a conflict of interest under Section 1103(a) of the Ethics Act to the extent that not terminating the Agreement would financially benefit you, a business with which you are associated, or the Police Commission. The submitted facts are insufficient to enable a conclusive determination as to whether you would have a conflict of interest as to official action involving the renegotiation of the Agreement. Therefore, this advisory must necessarily be limited to providing the following general guidance as to that aspect of your inquiry. You would have a conflict of interest under Section 1103(a) of the Ethics Act as to the renegotiation of the Agreement if the renegotiation of the Agreement could financially impact you, a business with which you are associated, or the Police Commission. As noted above, in each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The ropriety of the proposed 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 Supervisor for Berwick Township ( "Township "), located in Adams County, Pennsylvania, 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. Based upon the submitted facts that: (1) The Township is a member of the Eastern Adams Regional Police Department " ( ARP "); (2) EARP is governed by the Eastern Adams Regional Police Commission ( "Police Commission "), which body was established by an Agreement for Joint Police Services (hereinafter referred to as the Agreement ") entered into by the Township and two other municipalities, Oxford Township and New Oxford Borough; (3) at present, there is a labor contract between the Police Commission and the Eastern Adams Regional Police Association "Police Association "), which labor contract is scheduled to expire on December 31, 2009; (4) you anticipate that prior to the expiration of the current labor contract, the Police Commission will negotiate with the Police Association for a new labor contract; (5) the member municipalities of EARP, Carey, 08 -546 April 30, 2008 Page 6of6 including the Township, could discuss certain provisions during the negotiation period and ultimately vote with regard to a final negotiated labor contract; and (6) you have a formal lease agreement with the Police Commission for a property that currently serves as the headquarters for EARP, you are advised as follows. Due to your business relationship with the Police Commission, generally you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the Police Commission. You would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the formal negotiations or vote on a new labor contract between the Police Commission and the Police Association. If you would participate /vote in favor of terminating the Agreement, such action would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act as long as any financial impact upon you, a business with which you are associated, or the Police Commission would be in the nature of a financial detriment. If you would participate /vote in opposition to terminating the Agreement, your official actions would form the basis for a conflict of interest under Section 1103(a) of the Ethics Act to the extent that not terminating the Agreement would financially benefit you, a business with which you are associated, or the Police Commission. You would have a conflict of interest under Section 1103(a) of the Ethics Act as to the renegotiation of the Agreement if the renegotiation of the Agreement could financially impact you, a business with which you are associated, or the Police Commission. In each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and 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) of the Ethics Act, 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