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HomeMy WebLinkAbout09-560 BartlettCarly J. Rittenhouse, Esquire Pizonka Reilley Bello & McGrory 144 East DeKalb Pike Suite 300 King of Prussia, PA 19406 Dear Ms. Rittenhouse: ADVICE OF COUNSEL June 17, 2009 09 -560 This responds to your letter dated May 12, 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: (1) a township supervisor, who in a private capacity is employed by PECO Energy Company as the County Affairs Manager, with regard to participating in the approval of the payment of the monthly township expenses, where such expenses would include a monthly utility bill from PECO for electric services; or (2) a township supervisor, whose son is employed by the township in the labor department of the wastewater treatment plant, with regard to participating in the approval of the payment of the monthly township expenses, where such expenses would include his son's compensation as part of payroll. Facts: As a member of the law firm that serves as Solicitor for Upper Merion Township ( "Township "), you have been authorized by Township Supervisors Edward McBride ("Mr. McBride ") and Joseph Bartlett, Sr. ( "Mr. Bartlett ") to request an advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. Mr. McBride is employed by PECO Energy Company ("PECO" as the County Affairs Manager. You state that Mr. McBride is not a stockholder in PECO, and he does not receive any compensation from PECO for his work or decisions as a Township Supervisor. PECO provides electric services to the Township. Mr. Bartlett's son, Joseph Bartlett, Jr., is employed by the Township in the labor department of the wastewater treatment plant. You state that Mr. Bartlett's son's employment with the Township began many years prior to Mr. Bartlett's election to the Township Board of Supervisors. Mr. Bartlett's son's salary is included in the Township payroll. Rittenhouse, 09 -560 June 17, 2009 Page 2 The Township Board of Supervisors consists of five Members. Each month, the Township Board of Supervisors approves the payment of Township expenses. You state that such expenses include the PECO monthly utility bill and the Township payroll. Based upon the above submitted facts, you pose the following specific inquiries: 1. Whether the Ethics Act would prohibit Mr. McBride from participating in the approval of the payment of the monthly Township expenses, where such expenses would include a monthly utility bill from PECO for electric services; and 2. Whether the Ethics Act would prohibit Mr. Bartlett from participating in the approval of the payment of the monthly Township expenses, where such expenses would include his son's compensation as part of payroll. 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. As Township Supervisors, Mr. McBride and Mr. Bartlett are public officials 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 Rittenhouse, 09 -560 June 17, 2009 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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. Rittenhouse, 09 -560 June 17, 2009 Page 4 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, it is noted that Section 1103(a) of the Ethics Act pertaining to conflict of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private clients(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a business with which the public official /public employee or immediate family member is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; Miller, Opinion 89- 024. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. PECO is a business with which Mr. McBride is associated in his capacity as an employee (County Affairs Manager). Mr. Bartlett's son is a member of Mr. Bartlett's "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr. McBride generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact him, PECO, or PECO's customer(s)/client(s), and Mr. Bartlett generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact him or his son. Your specific inquiries shall now be addressed. In response to your first specific inquiry, you are advised as follows. To the extent that the monthly Township expenses would be voted on in their entirety by a single motion, and such expenses would include the Township's monthly utility bill from PECO, Mr. McBride would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of the payment of the Township's monthly expenses. Rittenhouse, 09 -560 June 17, 2009 Page 5 If expenses presenting a conflict of interest for Mr. McBride would be voted on separately, Mr. McBride's conflict of interest as to the approval of Township expenses would be limited to those particular expenses. In each instance of a conflict of interest, Mr. McBride would be required to abstain fully from participation and in each instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With regard to your second specific inquiry, you are advised that Mr. Bartlett generally would have a conflict of interest in approving a Township payroll that would include payment of compensation to an immediate family member such as his son. However, a conflict of interest would not exist with regard to the approval of pre- fixed, routine, uncontested bills /obligations. See, Kistler, Order 1441; Yezzi, Order 825 at 58; Krushinski, Order 168; Maholick, Opinion 90 -010; Brooks, Opinion 89 -023. Thus, subject to the conditions that: (1) Mr. Bartlett would abstain fully from participation in matters pertaining to the determination of the compensation for his son as a Township employee; and (2) the compensation to be paid to Mr. Bartlett's son would be pre- fixed, routine, and uncontested, such as straight salary, and would not include any amounts that would not be pre- fixed, routine, and uncontested, Mr. Bartlett would not have a conflict of interest in voting to approve payment of Township payroll that would include payment of such compensation to his son. If expenses presenting a conflict of interest for Mr. Bartlett would be voted on separately, Mr. Bartlett's conflict of interest as to the approval of Township expenses would be limited to those particular expenses. In each instance of a conflict of interest, Mr. Bartlett would be required to abstain fully from participation and in each instance of a voting conflict, 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 Supervisors for Upper Merion Township ( "Township "), Edward McBride ( "Mr. McBride ") and Joseph Bartlett, Sr. ( "Mr. Bartlett ") are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. PECO Energy Company ( "PECO ") is a business with which Mr. McBride is associated in his capacity as an employee (County Affairs Manager). Mr. Bartlett's son, Joseph Bartlett, Jr., who is employed by the Township in the labor department of the wastewater treatment plant, is a member of Mr. Bartlett's "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr. McBride generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact him, PECO, or PECO's customer(s)/client(s), and Mr. Bartlett generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact him or his son. To the extent that the monthly Township expenses would be voted on in their entirety by a single motion, and such expenses would include the Township's monthly utility bill from PECO, Mr. McBride would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of the payment of the Township's monthly expenses. Mr. Bartlett generally would have a conflict of interest in approving a Township payroll that would include payment of compensation to an immediate family member such as his son. However, a conflict of interest would not exist with regard to the approval of pre- fixed, routine, uncontested bills /obligations. Subject to the conditions that: (1) Mr. Bartlett would abstain fully from participation in matters pertaining to the determination of the compensation for his son as a Township employee; and (2) the compensation to be paid to Mr. Bartlett's son would be pre - fixed, Rittenhouse, 09 -560 June 17, 2009 Page 6 routine, and uncontested, such as straight salary, and would not include any amounts that would not be pre- fixed, routine, and uncontested, Mr. Bartlett would not have a conflict of interest in voting to approve payment of Township payroll that would include payment of such compensation to his son. As to each Township Supervisor (that is, Mr. McBride or Mr. Bartlett), in each instance of a conflict of interest, the Township Supervisor would be required to abstain fully from participation and in each instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. If expenses presenting a conflict of interest for the Township Supervisor would be voted on separately, the Township Supervisor's conflict of interest as to the approval of Township expenses would be limited to those particular expenses. 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