HomeMy WebLinkAbout09-582 Confidential
ADVICE OF COUNSEL
December 22, 2009
09-582
This responds to your letter dated November 4, 2009, by which you requested a
confidential 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 present any prohibitions or restrictions upon a township
supervisor serving on a three-member board of supervisors with regard to: (1) voting to
appoint himself to a compensated position with the township such as treasurer,
secretary, or roadmaster; or (2) seconding a motion to appoint the township supervisor’s
A as the B for the township, where the other two township supervisors would have
opposing views, and then voting to break a tie if the other two supervisors would cast
opposing votes.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You were elected in 2009 as a Supervisor for [name of township] (“the
Township”). Your term of office will begin in January 2010. The Township Board of
Supervisors (“Board”) consists of three Members.
Based upon the above submitted facts, you pose the following specific questions:
1. Whether any provision of the Ethics Act, and in particular Section 1112 of
the Ethics Act, would prohibit you from voting to appoint yourself to a
compensated position with the Township such as Treasurer, Secretary, or
Roadmaster; and
2. Whether Section 1103(j) of the Ethics Act would permit you to second a
motion to appoint your A as B for the Township, where the other two
township supervisors would have opposing views, and then vote to break
a tie if the other two supervisors would cast opposing votes.
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
Confidential Advice, 09-582
December 22, 2009
Page 2
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.
Upon taking office as a Township Supervisor, you would become a “public
official” subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa.
Code § 11.1.
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
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
Confidential Advice, 09-582
December 22, 2009
Page 3
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.
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 that your A is a member of your “immediate family” as that term is defined in the
Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a
Township Supervisor, you generally would have a conflict of interest in matters that
would financially impact you, your A, or a business with which you or your A is
associated.
Section 1112 of the Ethics Act provides as follows:
§ 1112. Conflict of law
Except as otherwise provided in Chapter 13 (relating
to lobby regulation and disclosure), if the provisions of this
chapter conflict with any other statute, ordinance, regulation
or rule, the provisions of this chapter shall control.
65 Pa.C.S. § 1112.
Your specific questions shall now be addressed.
The following provisions of the Second Class Township Code are relevant to
your first specific question:
Confidential Advice, 09-582
December 22, 2009
Page 4
§ 65602. Organization meeting; appointment of
secretary and treasurer
(a) . . . With regard to boards of supervisors which are
designated as three-member boards, any supervisor who is
to be considered by the board for any appointed township
position or for employment by the township as authorized by
law shall not be excluded from voting on the issue of such
appointment or employment. Action taken by a supervisor
shall be deemed to be within the scope of authority as a
supervisor and shall not be deemed to constitute an illegal or
an improper conflict of interest.
…
(c) The board of supervisors may appoint a supervisor to
be employed as roadmaster, laborer, secretary, treasurer,
assistant secretary, assistant treasurer or in any employe
capacity not otherwise prohibited by this or any other act.
…
53 P.S. § 65602(a), (c).
It is clear from the face of the above provisions of the Second Class Township
Code that a supervisor serving on a three-member board is not excluded from voting on
the issue of his own appointment/employment to a position that is authorized by law,
such as treasurer, secretary, or roadmaster. (See, Calvert, Order 1514 at 19).
Accordingly, you are advised that because the Board consists of three Members,
you would not have a conflict of interest under Section 1103(a) of the Ethics Act with
regard to voting to appoint yourself to a compensated position with the Township that is
authorized by law, such as Treasurer, Secretary, or Roadmaster. See, Crosswell,
Advice 03-572; Lightner, Advice 07-602. However, in the event that you would have a
conflict of interest in a matter before you in such position(s), you 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.
You are further advised that Section 1112 of the Ethics Act would not be
applicable since there is no conflict between Sections 1103(a) and 1103(j) of the Ethics
Act and the above-quoted provisions of the Second Class Township Code.
In response to your second specific question, you are advised as follows.
You would specifically have a conflict of interest in matters pertaining to the
appointment of the Township B where your A would be considered, or would be among
those considered, for said position. Subject to the voting conflict exceptions of Section
1103(j) of the Ethics Act, you would be required to abstain fully from participation in
each instance of a conflict of interest.
The exception for breaking a tie vote despite a conflict is available exclusively to
members of three-member governing bodies who first abstain and disclose their
conflicts as required by Section 1103(j) of the Ethics Act. See, Garner, Opinion 93-004;
Pavlovic, Opinion 02-005.
In Garner, supra, the Commission considered the issue of whether, under
Section 1103(j) of the Ethics Act, a township supervisor serving on a three member
board would be permitted to second a motion despite a conflict where the two remaining
supervisors would have opposing views or where one of the remaining two members
would be absent from the meeting. Citing Juliante, supra, the Commission first noted
Confidential Advice, 09-582
December 22, 2009
Page 5
that seconding a motion is a use of authority of office. See, Garner, supra. The
Commission then stated:
However, the General Assembly in enacting Section
[1103(j)] would not have allowed a public official/employee
on a three member board who has a conflict to be able to
vote unless a second to the motion could be made so that
the matter would be in the posture for a vote. Thus, we
believe that since there is a need for a second to a motion in
order to make Section [1103(j)] of the Ethics Law operative,
the General Assembly intended as to three members [sic]
boards for the public official with a conflict to be allowed to
second so that if the other supervisors became deadlocked,
the public official could then vote provided the disclosure
requirements are satisfied.
Garner, Opinion 93-004 at 6. The Commission concluded that Section 1103(j) of the
Ethics Act would allow a township supervisor serving on a three-member board to
second a motion despite a conflict where the two remaining supervisors would have
opposing views or where one of the other two supervisors would be absent. The
Commission emphasized that its ruling was expressly limited in its application to three
member boards and to the question of seconding a motion.
In applying Garner to the instant matter, you are advised as follows.
Because the Board consists of three Members, you would be permitted to
second a motion to appoint your A as B for the Township where the other two Township
Supervisors would have opposing views. Allowing you to second the motion under such
circumstances would put the matter in a posture for a vote. As long as you would
initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act, you would then be permitted to vote to break the tie if
the other two Township Supervisors would cast opposing votes. However, you could
not otherwise use the authority of office, such as by advocating your view, in the matter.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Conclusion:
Upon taking office as a Member of the three-Member Board of
Supervisors (“Board”) of [name of township] (“the Township”), you would become a
“public official” subject to the provisions of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Your A is a member of your “immediate family”
as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act,
in your public capacity as a Township Supervisor, you generally would have a conflict of
interest in matters that would financially impact you, your A, or a business with which
you or your A is associated. Because the Township Board of Supervisors consists of
three Members, you would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to appoint yourself to a compensated position with the
Township that is authorized by law, such as Treasurer, Secretary, or Roadmaster.
However, in the event that you would have a conflict of interest in a matter before you in
such position(s), you 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. You would specifically have a conflict of interest in
matters pertaining to the appointment of the Township B where your A would be
considered, or would be among those considered, for said position. Subject to the
voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to
abstain fully from participation in each instance of a conflict of interest. Because the
Board consists of three Members, you would be permitted to second a motion to appoint
your A as B for the Township where the other two Township Supervisors would have
Confidential Advice, 09-582
December 22, 2009
Page 6
opposing views. Allowing you to second the motion under such circumstances would
put the matter in a posture for a vote. As long as you would initially: (1) abstain from
the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act, you would then be permitted to vote to break the tie if the other two Township
Supervisors would cast opposing votes. However, you could not otherwise use the
authority of office, such as by advocating your view, in the matter. 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