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HomeMy WebLinkAbout09-507 BitzKevin Bitz 1509 Dogwood Drive Reading, PA 19609 Dear Mr. Bitz: ADVICE OF COUNSEL February 6, 2009 09 -507 This responds to your letter of January 5, 2009, 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 permit an Environmental Collection System Manager for a township to seek election as a supervisor for the township; 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 matters pertaining to his employment with the township or the individual(s) who would exercise authority over him with respect to his employment with the township. Facts: You have requested an advisory from the Pennsylvania State Ethics C ommission based upon submitted facts that may be fairly summarized as follows. You are currently employed as the Environmental Collection System Manager for the Township of Spring ( "Township "), located in Berks County, Pennsylvania. You previously served as a Township Supervisor from 1982 to 2003. Since approximately 2005, you have been employed in your current position with the Township. You have submitted a copy of the job description for your position as Environmental Collection System Manager, which document is incorporated herein by reference. Per the submitted job description, the duties and responsibilities of the Environmental Collection System Manager include: (1) providing supervision, coordination and administration for all aspects of the Waste Water Collection System; (2) providing administration of the Township recycling programs; (3) performing analysis of Sewer Department ( "the Department ") operations in order to provide the Public Works Director with projected trends and the ramifications of expected changes; (4) monitoring and managing the fiscal operations of the Department; (5) preparing and/or coordinating the preparation of applications for public works grants and loans; (6) obtaining bid proposals and price quotations; (7) negotiating, drafting and administering all contractual agreements and managing the work of contractors and consultants; (8) Bitz, 09 -507 February 6, 2009 Page 2 recommending short and long range plans and goals for the Department; and (9) working with the Public Works Director and Township Treasurer on trash and recycling contracts and grants. It is administratively noted that per the submitted job description, the Environmental Collections System Manager reports to the Roadmaster /Public Works Director. The Township is governed by a five - member Board of Supervisors. You state that you are considering running for office as a Township Supervisor in the 2009 election. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to seek election as a Township Supervisor. 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 the Environmental Collection System Manager for the Township, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. 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 Bitz, 09 -507 February 6, 2009 Page 3 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 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. 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 Bitz, 09 -507 February 6, 2009 Page 4 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, you are advised as follows. The Ethics Act would not prohibit you from seeking election as a Township Supervisor. If you would be elected as a Township Supervisor, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to your employment with the Township or to individual(s) who would exercise authority over you with respect to your employment as the Environmental Collection System Manager. In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather would extend to any use of authority of office. In each instance of a voting conflict, you would be required to abstain fully and to 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 the Environmental Collection System Manager for the Township of Spring ( "Township "), located in Berks County, Pennsylvania, you are a 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 Township Supervisor, 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 prohibit you from seeking election as a Township Supervisor. If you would be elected as a Township Supervisor, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to your employment with the Township or to individual(s) who would exercise authority over you with respect to your employment as the Environmental Collection System Manager. In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather would extend to any use of authority of office. In each instance of a voting conflict, you would be required to abstain fully and to 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. Bitz, 09 -507 February 6, 2009 Page 5 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