HomeMy WebLinkAbout09-581 Murray
ADVICE OF COUNSEL
December 21, 2009
Vaughn A. Murray
P.O. Box 167
Montandon, PA 17850
09-581
Dear Mr. Murray:
This responds to your letter dated November 3, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a member
and chairman of a township board of supervisors with regard to simultaneously serving
as the treasurer for the firemen’s relief association of a volunteer fire company where:
(1) the volunteer fire company is located in a different municipality but provides some
fire protection to the township; (2) the township distributes firemen’s relief funds
received from the Commonwealth of Pennsylvania to the volunteer fire company and
two other fire companies that provide fire protection for the township; and (3) the
township board of supervisors decides how to break down the distribution of such relief
funds among the three fire companies.
Facts:
As a Member and Chairman of the West Chillisquaque Township
(“Township”) Board of Supervisors, you request an advisory from the Pennsylvania
State Ethics Commission based upon submitted facts that may be fairly summarized as
follows.
You have been asked to serve as the treasurer for the firemen’s relief association
of the William Cameron Engine Company (“the Engine Company”). The Engine
Company is located in a different municipality but provides some fire protection to the
Township.
The Township distributes firemen’s relief funds received from the Commonwealth
of Pennsylvania to the Engine Company and two other fire companies that provide fire
protection for the Township. The Township Board of Supervisors decides how to break
down the distribution of the aforesaid relief funds among the three fire companies.
Based upon the above submitted facts, you ask whether it would be a conflict of
interest for you to simultaneously serve as a Township Supervisor and as treasurer for
the firemen’s relief association of the Engine Company.
Murray, 09-581
December 21, 2009
Page 2
You express your understanding that if you would be permitted to simultaneously
serve in the aforesaid positions, you would be required to abstain from voting on the
breakdown of the distribution of the firemen’s relief funds that the Township receives
from the Commonwealth.
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 initially noted that you have posed a narrow question as to
simultaneous service. You have not posed any questions regarding the Township’s
distribution of firemen’s relief funds received from the Commonwealth. Based upon the
limited submitted facts and the narrow question posed, this advisory does not address
potential conflict(s) of interest as to such matter(s).
As a Member and Chairman of the Township Board of Supervisors, 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).
Murray, 09-581
December 21, 2009
Page 3
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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.
"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.
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 applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not
appear to be any statutorily-declared incompatibility precluding simultaneous service as
Murray, 09-581
December 21, 2009
Page 4
a Member and Chairman of the Township Board of Supervisors and treasurer for the
firemen’s relief association of the Engine Company.
Turning to the question of conflict of interest, where simultaneous service would
place the public official/public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. See, McCain, Opinion 02-009. Where an inherent
conflict would exist, it would appear to be impossible, as a practical matter, for the
public official/public employee to function in the conflicting positions without running
afoul of Section 1103(a) of the Ethics Act.
Absent a statutorily-declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the
individual would be required to abstain, and in each instance of a voting conflict, to
abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above.
In this case, based upon the facts that have been submitted, there does not
appear to be an inherent conflict that would preclude simultaneous service as a Member
and Chairman of the Township Board of Supervisors and treasurer for the firemen’s
relief association of the Engine Company. Consequently, such simultaneous service
would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a Member and Chairman of the West Chillisquaque Township
(“Township”) Board of Supervisors, you are a public official subject to the provisions 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 have been asked to serve as the treasurer
for the firemen’s relief association of the William Cameron Engine Company (“the
Engine Company”); (2) the Engine Company is located in a different municipality but
provides some fire protection to the Township; (3) the Township distributes firemen’s
relief funds received from the Commonwealth of Pennsylvania to the Engine Company
and two other fire companies that provide fire protection for the Township; and (4) the
Township Board of Supervisors decides how to break down the distribution of the
aforesaid relief funds among the three fire companies, you are advised as follows.
Subject to the restrictions, conditions and qualifications set forth above, you may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Member
and Chairman of the Township Board of Supervisors and treasurer for the firemen’s
relief association of the Engine Company. Lastly, the narrow question posed 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.
Murray, 09-581
December 21, 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