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HomeMy WebLinkAbout08-601 DiColaADVICE OF COUNSEL December 5, 2008 Gale E. Measel, Jr., Chairman Neshannock Township Board of Supervisors Municipal Building 3131 Mercer Road New Castle, PA 16105 Dear Mr. Measel: 08 -601 This responds to your letter dated September 30, 2008, and the letter of John DiCola, Jr. ( "Mr. DiCola') dated October 28, 2008, requesting 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 impose any prohibitions or restrictions upon a township supervisor who is employed by the township as Director of Public Services, with regard to meeting with one or both of the other township supervisors during normal township business hours on matters within the scope of his duties as the Director of Public Services, when: (1) the position of Director of Public Services is a full -time, salaried position; (2) the Director of Public Services is not paid on an hourly basis, but rather is expected to work as many hours as are required to discharge all of the duties of the position; (3) the duties set forth in the job description for the Director of Public Services include meeting with the Township Supervisors on matters within the scope of duties of the Director of Public Services; and (4) the township supervisor would not collect any compensation other than the salary associated with the position of Director of Public Services for attending such meetings with the township supervisors. Facts: As a Member and Chairman of the three - member Board of Supervisors ( "Board ") of Neshannock Township ( "Township "), located in Lawrence County, Pennsylvania, you have been authorized by Mr. DiCola, an elected Member of the Board, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. The advisory request is based upon submitted facts that may be fairly summarized as follows. In addition to serving as a Township Supervisor, Mr. DiCola is employed as the Director of Public Services for the Township. The position of Director of Public Services was created by Township Resolution # 1998 -60. Copies of the aforesaid Township resolution and the job description for the position of Director of Public Services have been submitted, which documents are incorporated herein by reference. The position of Director of Public Services is a full -time, salaried position. Each January, the elected auditors set the compensation and benefits for such position for the calendar year. Per the submitted facts, the Director of Public Services is not paid on Measel, 08 -601 December 5, 2008 Page 2 an hourly basis, but rather is expected to work as many hours as are required to discharge all of the duties of the position. The duties set forth in the job description for the Director of Public Services include meeting with the Township Supervisors on matters within the scope of duties of the Director of Public Services. Per the job description, the Director of Public Services is to meet with the Township Supervisors at "designated times" to discuss operations. Job Description, at 1. The Director of Public Services also meets with the Township Supervisors to discuss "key areas of community service levels." Id. In your letter of September 30, 2008, you stated that from time to time, it is necessary for Mr. DiCola, in his capacity as the Director of Public Services, to meet with one of the other Township Supervisors during normal Township business hours or to meet with both of the other Township Supervisors in an executive session. You expressed your opinion that the job description for the position of Director of Public Services includes such meetings as long as the issues discussed are within the scope of the duties of the Director of Public Services. You further expressed your opinion that since the Director of Public Services is not paid on an hourly basis and is expected to discharge all of the duties of said position without regard to the number of hours required to do so, the performance of Mr. DiCola's duties as the Director of Public Services is not impaired by time that he spends during normal Township business hours discussing various issues with the other Township Supervisors. In Mr. DiCola's letter of October 28, 2008, Mr. DiCola stated that his attendance at the aforesaid meetings would not deviate from the duties set forth in the job description for the position of Director of Public Services, and that he would not collect any compensation other than the salary associated with the position of Director of Public Services for attending meetings with the Township Supervisors on matters within the scope of the duties of the Director of Public Services. Mr. DiCola further stated that Board meetings requiring a decision /vote in public are held outside of his normal workday or he takes time off from work in order to attend such meetings. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. DiCola to meet with one or both of the other Township Supervisors during normal Township business hours on matters within the scope of Mr. DiCola's duties as the Director of Public Services. 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. It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Township Supervisor, Mr. DiCola is a public official subject to the provisions of the Ethics Act. Based upon the duties and authority set forth in the submitted job description, in his capacity as the Director of Public Services for the Township, Mr. Measel, 08 -601 December 5, 2008 Page 3 DiCola is a public official /public employee subject to the Ethics Act. See, 65 Pa.C.S. 1102; 51 Pa. Code § 11.1. 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 Measel, 08 -601 December 5, 2008 Page 4 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. Subject to certain statutory exceptions, 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 the instant matter, based upon the submitted facts that: (1) the position of Director of Public Services of the Township is a full -time, salaried position; (2) as the Township's Director of Public Services, Mr. DiCola is not paid on an hourly basis, but rather is expected to work as many hours as are required to discharge all of the duties of the position; (3) the duties set forth in the job description for the Director of Public Services include meeting with the Township Supervisors on matters within the scope of duties of the Director of Public Services; and (4) Mr. DiCola would not collect any compensation other than the salary associated with the position of Director of Public Services for attending such meetings with the Township Supervisors, Section 1103(a) of the Ethics Act would not prohibit Mr. DiCola from meeting with one or both of the other Township Supervisors during the Township's normal business hours on matters within the scope of Mr. DiCola's duties as the Director of Public Services. Under the submitted facts, Mr. DiCola would receive the same compensation as Director of Public Services regardless of the particular hours he would meet with the Township Supervisors. 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 Neshannock Township ( "Township "), located in Lawrence County, Pennsylvania, John DiCola, Jr. ( "Mr. DiCola") is a " ublic official" subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. In his capacity as the Director of Public Services for the Township, Mr. DiCla is a public official /public employee subject to the Ethics Act. Based upon the submitted facts that: (1) the position of Director of Public Services of the Township is a full -time, salaried position; (2) as the Township's Director of Public Services, Mr. DiCola is not paid on an hourly basis, but rather is expected to work as many hours as are required to discharge all of the duties of the position; (3) the duties set forth in the ob description for the Director of Public Services include meeting with the Township Su Supervisors on matters within the scope of duties of the Director of Public Services; and (4) Mr. DiCola would not collect any compensation other than the salary associated with the position of Director of Public Services for attending such meetings with the Township Supervisors, Measel, 08 -601 December 5, 2008 Page 5 Section 1103(a) of the Ethics Act would not prohibit Mr. DiCola from meeting with one or both of the other Township Supervisors during the Township's normal business hours on matters within the scope of Mr. DiCola's duties as the Director of Public Services. Under the submitted facts, Mr. DiCola would receive the same compensation as Director of Public Services regardless of the particular hours he would meet with the Township Supervisors. 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