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HomeMy WebLinkAbout09-540 EAstonWilliam L. Easton 7211 Pine Road Neville Island, PA 15225 Dear Mr. Easton: ADVICE OF COUNSEL April 22, 2009 09 -540 This responds to your letter dated March 5, 2009, 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 impose any prohibitions or restrictions upon a township commissioner with regard to receiving reimbursement from the township for attending a conference hosted by the Pennsylvania Rural Water Association when: (1) the township is a member of the Pennsylvania Rural Water Association; (2) the commissioner is in charge of the township water and sewers; (3) the commissioner is a Pennsylvania state- certified water and wastewater operator; (4) the commissioner would receive continuing education credits toward his state certification for attending classes at such conference; and (5) the township has a policy that it will pay for attendance at a conference that pertains to township business. Facts: As a Commissioner for Neville Township ( "the Township "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are a Pennsylvania state - certified water and wastewater operator ("Operator"). You state that you are the Township Commissioner in charge of the Township water and sewers. The Township is a member of an organization named the Pennsylvania Rural Water Association" ("PRWA "). You state that you will be paying for your attendance at PRWA's water and sewer conference ( "the Conference "). You state that you will receive continuing education credits toward your Operator certification for attending classes at the Conference. You further state that there is no extra cost to attend such classes, everyone who attends may receive continuing education credits, and the Township would not have to pay extra for the continuing education credits. You state that the Township has a policy that it will pay for attendance at a conference that pertains to Township business. You state that the aforesaid policy was in effect before you became a Township Commissioner. Easton, 09 -540 April 22, 2009 Page 2 It is administratively noted that per the PRWA website, PRWA is a member - supported, non - profit, non - government organization. See, http: / /www.prwa.com /v2/ prwa /missian.asp. Based upon the above facts, you ask whether the Ethics Act would permit you to seek reimbursement from the Township for your attendance at the Conference. 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 Commissioner, you are 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 related to Section 1103(a) 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 Easton, 09 -540 April 22, 2009 Page 3 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. 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. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /public employee may receive a pecuniary benefit under the Ethics Act. In such cases, other laws must be considered to determine whether the pecuniary benefit is permitted under the Ethics Act as authorized in law or is prohibited as a private pecuniary benefit without authorization in law. A financial gain to a public official /public employee that is other than compensation provided for by law is a private pecuniary benefit. Thompson, Opinion 99 -005. The First Class Township Code provides, in pertinent part, as follows: § 55611. Membership of associations; expenses of members The township commissioners and other officers of the township designated by the township commissioners shall attend such conventions, conferences, institutes or schools [held by county associations of township officers] whenever possible. Each township officer attending such convention, conference, institute or school shall receive a certificate ... [that] shall entitle to him to collect from the township Easton, 09 -540 April 22, 2009 Page 4 Act. treasurer expenses which shall be limited to the registration fee, mileage for use of personal vehicle or reimbursement of actual transportation expense going to and returning from such meeting plus all other actual expenses that the township commissioners may have agreed to pay.... 53 P.S. § 55611. § 55622. Expenses of delegates paid by townships Each delegate and other officer attending the annual meeting of the State association [of township commissioners] shall be allowed expenses which shall be limited to the registration fee, mileage for use of personal vehicle or reimbursement of actual transportation expense going to and returning from such meeting plus all other actual expenses that the township commissioners may have agreed to pay.... 53 P.S. § 55622. § 55624. Conferences, institutes and schools The actual expenses for attending the conferences, institutes and schools of elected or appointed township officers and employes may be paid by the township when authorized by the board of township commissioners and shall be limited to the registration fee, mileage for use of personal vehicle or reimbursement of actual transportation expense going to and returning from such meeting plus all other actual expenses that the township commissioners may have agreed to pay.... 53 P.S. § 55624. Although the above quoted provisions of the First Class Township Code authorize a township commissioner to receive reimbursement of expenses for attending (1) conventions, conferences, institutes or schools held by county associations of township officers; (2) the annual meeting of the State association of township commissioners; and (3) conferences, institutes and schools of elected or appointed township officers and employees, it is not clear whether the First Class Township Code would authorize a township commissioner to receive reimbursement of expenses for attending a conference hosted by the Pennsylvania Rural Water Association. There do not appear to be any court cases addressing that question. Since the State Ethics Commission does not have the statutory jurisdiction to interpret the First Class Township Code, this advisory must be limited to providing the following general guidance. To the extent the First Class Township Code would not authorize you to receive reimbursement of expenses from the Township for attending a conference hosted by the Pennsylvania Rural Water Association, the receipt of reimbursement of such expenses would be a private pecuniary benefit and could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. For a conference that the First Class Township Code would authorize you to attend at Township expense, Section 1103(a) of the Ethics Act would not prohibit you from receiving continuing education credits offered to you as an attendee at no extra charge to the Township. Cf., Marsh, Advice 99 -618. The propriety of the proposed conduct has only been addressed under the Ethics Easton, 09 -540 April 22, 2009 Page 5 Conclusion: As a Commissioner for Neville Township ( "the Township "), you are a public official subject to the rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: 1 you are a Pennsylvania state - certified water and wastewater operator ( "Operator "); (2) you are the Township Commissioner in charge of the Township water and sewers; (3) the Township is a member of a private organization named the Pennsylvania Rural Water Association" ( "PRWA "); (4) you will be paying for your attendance at PRWA's water and sewer conference ( "the Conference "); (5) you will receive continuing education credits toward your Operator certification for attending classes at the Conference; (6) the Township has a policy that it will pay for attendance at a conference that pertains to Township business; and (7) the aforesaid policy was in effect before you became a Township Commissioner, you are advised as follows. The State Ethics Commission does not have the statutory jurisdiction to interpret the First Class Township Code. To the extent the First Class Township Code would not authorize you to receive reimbursement of expenses from the Township for attending a conference hosted by the Pennsylvania Rural Water Association, the receipt of reimbursement of such expenses would be a private pecuniary benefit and could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. For a conference that the First Class Township Code would authorize you to attend at Township expense, Section 1103(a) of the Ethics Act would not prohibit you from receiving continuing education credits offered to you as an attendee at no extra charge to the Township. 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