Loading...
HomeMy WebLinkAbout09-537 RidenFrances E. Riden P.O. Box 511 171 College Avenue Milroy, PA 17063 Dear Ms. Riden: ADVICE OF COUNSEL April 3, 2009 Sections 1103(a) and 1103(j) of the Ethics Act provide: 09 -537 This responds to your letter dated February 23, 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 present any prohibitions or restrictions upon a township supervisor's fiancee with regard to serving as a supervisor for the township. Facts: Your fiance currently serves as a Supervisor for Armagh Township ( "the Township "), located in Mifflin County, Pennsylvania. You ask whether the Ethics Act would permit you to serve as a Township Supervisor, and if so, whether you could continue to serve in said capacity at such time as your fiance would become your spouse. 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. 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. Riden, 09 -537 April 3, 2009 Page 2 § 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. Riden, 09 -537 April 3, 2009 Page 3 "Immediate family." A parent, spouse, child, brother or sister. 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 applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act would not prohibit you from serving as a Township Supervisor while your fiance is serving as a Township Supervisor. Upon assuming office as a Township Supervisor, you would become a public official subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. As noted above, the term "immediate family" is defined to include a parent, spouse, child, brother or sister. Your fiance is not a member of your immediate family. Therefore, your relationship with your fiance in and of itself would not form the basis of a conflict of interest for you under the Ethics Act in matters before the Township Board of Supervisors. You are further advised that if your fiance would become your spouse, he would then be considered a member of your "immediate family" as that term is defined in the Ethics Act. The Ethics Act would not prohibit you from serving as a Township Supervisor while your spouse would be serving as a Township Supervisor. However, pursuant to Section 1103(a) of the Ethics Act, you would then generally have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you or your spouse. 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: The Ethics Act would not prohibit you from serving as a Supervisor for Armagh Township ( "the Township "), located in Mifflin County, Pennsylvania, while your fiance is serving as a Township Supervisor. Upon assuming office as a Township Supervisor, you would become a public official subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Your fiance is not a member of your immediate family as that term is defined in the Ethics Act. Therefore, your relationship with your fiance in and of itself Riden, 09 -537 April 3, 2009 Page 4 would not form the basis of a conflict of interest for you under the Ethics Act in matters before the Township Board of Supervisors. If your fiance would become your spouse, he would then be considered a member of your "immediate family" as that term is defined in the Ethics Act. The Ethics Act would not prohibit you from serving as a Township Supervisor while your spouse would be serving as a Township Supervisor. However, pursuant to Section 1103(a) of the Ethics Act, you would then generally have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you or your spouse. 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