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HomeMy WebLinkAbout08-585 BrandtJay M. Brandt 6898 Schoolhouse Road Hershey, PA 17033 Dear Mr. Brandt: ADVICE OF COUNSEL October 21, 2008 08 -585 This responds to your letter dated September 3, 2008 (postmarked September 13, 2008, and received September 15, 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 with regard to: (1) simultaneously serving as a member of a municipal authority board; (2) voting to appoint himself to serve as an uncompensated member of such authority board; or (3) participating in actions, negotiations, or votes on issues involving transactions between the township and the municipal authority while simultaneously serving in the positions in question; and if the township supervisor would be appointed to a position on the municipal authority board, whether the municipal authority would be considered a business with which the township supervisor is associated such that he would be required to disclose on his Statement of Financial Interests such authority board position as an "office, directorship or employment in any business entity." Facts: As a Supervisor for Conewago Township ( "Township "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The Township Board of Supervisors ( "Board of Supervisors ") created the Conewago Municipal Authority ( "Authority ") in 2005, pursuant to the Municipality Authorities Act, 53 Pa. C. S. § 5601 et seq. You state that you are considering voting to appoint yourself to the Authority Board. You express your view that the Second Class Township Code would not prohibit simultaneous service as a township supervisor and a municipal authority board member. Brandt, 08 -585 October 21, 2008 Page 2 Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would prohibit you from simultaneously serving as a Township Supervisor and an Authority Board Member. You pose the following three, additional inquiries if the Ethics Act would permit simultaneous service in the positions in question: 1. Whether the Ethics Act would prohibit you, in your capacity as a Township Supervisor, from voting to appoint yourself to serve as an uncompensated Authority Board Member; 2. Whether the Ethics Act would permit you, in your capacity as a Township Supervisor, to participate in actions, negotiations, or votes on issues involving transactions between the Township and the Authority; and 3. If you would be appointed to serve in the position of Authority Board Member, whether the Authority would be considered a business with which you are associated such that you would be required to disclose on your Statement of Financial Interests ( "SFI ") such position as an "office, directorship or employment in any business entity." 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, you are a public official subject to the provisions of the Ethics Act. If you would be appointed as a Member of the Authority Board, you would in that capacity also be 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 Brandt, 08 -585 October 21, 2008 Page 3 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. "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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 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. Brandt, 08 -585 October 21, 2008 Page 4 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, Opinion 02 -005. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. See, Commonwealth v. Lucas, 534 Pa. 293, 632 A.2d 868 (1993). Turning to the question of conflict of interest, where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and, in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Township Supervisor and an Authority Board Member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Turning to your specific inquiries, you are advised as follows. In response to your first specific inquiry, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to the position of Authority Board Member subject to the condition that you would receive no compensation as an Authority Member or officer. If you would receive no compensation as an Authority Member or officer (such that you would decline any officer compensation to which you might otherwise be entitled), then you would not have a conflict of interest under Section 1103(a) of the Ethics Act as to voting to appoint yourself to the Authority because the requisite element of a private pecuniary benefit would be lacking. Cf., DiPalma, Advice 04 -606. With regard to your second specific inquiry, you are advised as follows. Since the Authority is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business Brandt, 08 -585 October 21, 2008 Page 5 with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity 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. You are advised that absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in actions, negotiations, or votes on issues involving transactions between the Township and the Authority. Turning to your third specific inquiry, you are advised as follows. Since the Authority is not a `business" as that term is defined by the Ethics Act, if you would be appointed to serve in the position of Authority Board Member, you would not be required to disclose on your SFI such position as an "office, directorship or employment in an business entity" pursuant to Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. 1105r)(8). However, pursuant to Section 1105(b)(1) of the Ethics Act, 65 Pa.C.S. 1105 )(1), and Section 17.1 of the Commission Regulations, 51 Pa. Code § 17.1, you would be required to disclose in blocks 4 -5 of your SFI your positions as a Township Supervisor and as an Authority Board Member as public offices. Act. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: As a Supervisor for Conewago Township ( "Township "), 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. If you would be appointed as a Member of the Board of the Conewago Municipal Authority ( "Authority "), you would in that capacity also be a public official subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Township Supervisor and a Member of the Authority Board, subject to the restrictions, conditions and qualifications set forth above. Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to the position of Authority Board Member subject to the condition that you would receive no compensation as an Authority Member or officer. Since the Authority is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact the Authority 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. Absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in actions, negotiations, or votes on issues involving transactions between the Township and the Authority. Since the Authority is not a "business" as that term is defined by the Ethics Act, if you would be appointed to serve in the position of Authority Board Member, you would not be required to disclose on your Statement of Financial Interests ( "SFI ") such position as an "office, directorship or employment in any business entity" pursuant to Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8). However, pursuant to Section 1105(b)(1) of the Ethics Act, 65 Pa.C.S. § 1105(b)(1), and Section 17.1 of the Commission Regulations, 51 Pa. Code § 17.1, you would be required to disclose in blocks 4 -5 of your SFI your positions as a Township Supervisor and as an Authority Board Member as public offices. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Brandt, 08 -585 October 21, 2008 Page 6 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