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HomeMy WebLinkAbout09-502 ArnoldTimothy Arnold 1124 School House Lane Quakertown, PA 18951 Dear Mr. Arnold: ADVICE OF COUNSEL January 13, 2009 09 -502 This responds to your letter dated December 8, 2008, by which you requested advice 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 the executive director of a municipal authority with regard to seeking election as a supervisor for the township that appoints the members of the board of such municipal authority; and if said individual would be elected as a township supervisor, whether the Ethics Act would impose any prohibitions or restrictions upon him with regard to participating in the appointment of members of such municipal authority board. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are the Executive Director of the Richland Township Water Authority ( "Authority "), located in Bucks County, Pennsylvania. You state that you are considering seeking election as a Supervisor for Richland Township ( "Township "). The Township Supervisors appoint the members of the Authority Board. It is administratively noted that the Township is governed by a three - member Board of Supervisors. Based upon the above facts, you pose the following specific questions: 1. Whether the Ethics Act would require you to resign from your position as the Executive Director of the Authority in order to seek election as a Township Supervisor; and 2. If you would be elected as a Township Supervisor, whether the Ethics Act would permit you to participate in the appointment of member(s) of the Authority Board, and in particular, to break a tie vote as to such an appointment. Arnold, 09 -502 January 13, 2009 Page 2 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. 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. Preliminarily, it is noted that the submitted facts do not include an official position description for your position as the Executive Director of the Authority. This Advice assumes, without deciding, that in your capacity as the Executive Director of the Authority, you are a public official /public employee subject to the provisions of the Ethics Act. If you would be elected as a Township Supervisor, upon assuming said position, you would in that capacity 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 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 pertaining to conflicts of interest are defined in the Ethics Act as follows: Arnold, 09 -502 January 13, 2009 Page 3 § 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. 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. 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. Having established the above general principles, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised that the Ethics Act would not require you to resign from your position as the Executive Director of the Authority in order to seek election as a Township Supervisor. With regard to your second specific inquiry, you are advised as follows. If elected as a Township Supervisor, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to the Authority Board members- - such as the nomination, appointment, or reappointment by the Township Board of Supervisors of member(s) of the Authority Board -- because such individual(s) would exercise authority over you with respect to your employment as the Authority's Arnold, 09 -502 January 13, 2009 Page 4 Executive Director. See, Confidential Opinion, 05 -004; Elisco, Opinion 00 -003; Woodrinq, Opinion 90 -001. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. Because the Board of Supervisors is a three - member board, Section 1103(j) of the Ethics Act would permit you to vote to break a tie vote of the other Supervisors despite such a conflict, provided you would first abstain and disclose the conflict as required by Section 1103(j) of the Ethics Act. See, Pavlovic, supra. 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 or the Municipality Authorities Act. Conclusion: This Advice assumes, without deciding, that in your capacity as the Executive Director of the Richland Township Water Authority ( "Authority "), located in Bucks County, Pennsylvania, you are a public official /public employee 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 elected as a Supervisor for Richland Township ( "Township "), upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. The Ethics Act would not require you to resign from your position as the Executive Director of the Authority in order to seek election as a Township Supervisor. If elected as a Township Supervisor, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to the Authority Board members - -such as the nomination, appointment, or reappointment by the Township Board of Supervisors of member(s) of the Authority Board -- because such individual(s) would exercise authority over you with respect to your employment as the Authority's Executive Director. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. Because the Board of Supervisors is a three - member board, Section 1103(j) of the Ethics Act would permit you to vote to break a tie vote of the other Supervisors despite such a conflict rovided you would first abstain and disclose the conflict as required by 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, Arnold, 09 -502 January 13, 2009 Page 5 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