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HomeMy WebLinkAbout09-007 Rittenhouse OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk DATE DECIDED: 12/15/09 DATE MAILED: 12/29/09 09-007 Joseph P. Pizonka, Esquire Dana T. Rieder, Esquire Pizonka Reilley Bello & McGrory 144 East DeKalb Pike Suite 300 King of Prussia, PA 19406 Dear Counsel: This Opinion is issued in response to the appeal of Advice of Counsel 09-560, which was issued on June 17, 2009. I.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 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. II.FACTUAL BASIS FOR DETERMINATION: You have been authorized by Edward McBride (“Mr. McBride”), a Supervisor for Upper Merion Township (“Township”), to appeal Rittenhouse, Advice of Counsel 09-560, issued to Mr. McBride and Township Supervisor Joseph Bartlett, Sr. (“Mr. Bartlett”) on June 17, 2009, through Carly J. Rittenhouse, Esquire (“Ms. Rittenhouse”) of the law firm of Pizonka Reilley Bello & McGrory. The initial advisory request presented by Ms. Rittenhouse presented facts that were Pizonka/Rieder/Rittenhouse, 09-007 December 29, 2009 Page 2 summarized in the Advice of Counsel, in pertinent part, 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. . . . . 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. Rittenhouse, Advice of Counsel 09-560, at 1-2. Based upon the above submitted facts, Ms. Rittenhouse asked 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. Advice of Counsel 09-560 determined that Mr. McBride is a public official subject to the Ethics Act, and that PECO is a business with which Mr. McBride is associated in his capacity as an employee. The Advice further determined that 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). Advice of Counsel 09-560 concluded that to the extent 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. The Advice stated that 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. The Advice noted that 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. By faxed letter dated July 16, 2009, Ms. Rittenhouse appealed Advice of Counsel 09-560. Ms. Rittenhouse’s appeal letter did not state any particular basis for the appeal, but merely exercised the right to appeal the Advice of Counsel. By letter dated October 21, 2009, Ms. Rittenhouse was notified of the date, time and location of the public meeting at which the appeal would be considered. On November 18, 2009, this Commission received your Letter Brief dated November 17, 2009. In your Letter Brief, you first stated that you are not appealing the Advice of Counsel as it pertains to Mr. Bartlett’s conduct as a Township Supervisor. Pizonka/Rieder/Rittenhouse, 09-007 December 29, 2009 Page 3 You stated that PECO remains a state-regulated monopoly, and bills submitted for payment to the Township and/or the price of services within the Township are not negotiable. You expressed your view that as such, PECO bills submitted to the Township should be considered pre-fixed, routine and uncontested. You argued that the Advice of Counsel “fails to address and/or apply the standard set forth in the prior decision[s] of Kistler, Order 1441; Yezzi, Order 825 at 58; Krushinski, Order 165; Maholick, Opinion 90-010; and Brooks, 89-023, which state that a conflict of interest would not exist with regard to the approval of pre-fixed, routine, and uncontested bills/obligations.” Pizonka/Rieder Letter Brief, at 2. You contended that the Advice of Counsel “applies this standard to Mr. Bartlett in the same document, but does not apply this standard to the facts as they apply to Mr. McBride.” Id. You contended that the Advice of Counsel failed to address Ballard, Advice of Counsel 97-524, wherein it was determined that Section 3(a), now Section 1103(a), of the Ethics Act would permit a school director to vote to approve pre-determined, routine, uncontested utility electric bills from a utility with which the school director was employed. You asserted that the facts in Ballard are identical to the facts in this case yet Advice of Counsel 09-560 reached a different conclusion. At the public meeting on December 15, 2009, Mr. Pizonka appeared and offered commentary that reiterated the arguments set forth in the Letter Brief. III.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, this 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. Our review of this matter is de novo (Clarke, Opinion 04-012; Spear, Opinion 04- 011): “De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case.” D’Arciprete v. D’Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946). We begin our analysis by noting that as a Township Supervisor, Mr. McBride is clearly a public official subject to the provisions of the Ethics Act. Cf., e.g., Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), appeal denied, 1997 Pa. LEXIS 2719 (Pa. Dec. 22, 1997). 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 Pizonka/Rieder/Rittenhouse, 09-007 December 29, 2009 Page 4 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 relevant 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. "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. Pizonka/Rieder/Rittenhouse, 09-007 December 29, 2009 Page 5 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of the public position or confidential information received by holding the 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 is required to abstain fully from participation. The abstention requirement is not limited to voting, but rather, 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 the instant matter, PECO is a business with which Mr. McBride is associated. Mr. McBride is an employee of PECO, and status as an employee is sufficient to satisfy the above definition of the term “business with which he is associated.” In reviewing Advice of Counsel 09-560, we agree with the Advice that Mr. McBride generally would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact him, PECO, or PECO’s customer(s)/client(s). See, e.g., Preston, Opinion 07-008; Mann, Opinion 07-005; Confidential Opinion, 04-008; Moore, Opinion 04-004; Miller, Opinion 89- 024; Kannebecker, Opinion 92-010. However, we have previously determined that the approval of pre-fixed, routine, uncontested bills/obligations does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. See, Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89-023; Maholick, Opinion 90-010. Based upon this Commission’s precedents, it is our view that a conflict of interest would not exist with regard to the approval of a standard monthly utility bill that is pre-fixed, routine, and uncontested. In considering the above, it is our determination that Mr. McBride would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of a standard monthly utility bill from PECO that is pre-fixed, routine, and uncontested. However, Mr. McBride would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of payment of PECO bill(s) that would not meet the aforesaid criteria. 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. Based on our analysis above,Advice of Counsel 09-560 is affirmed as modified. Lastly, this matter has only been addressed under the Ethics Act. IV.CONCLUSION: As a Supervisor for Upper Merion Township (“Township”), Edward McBride (“Mr. Pizonka/Rieder/Rittenhouse, 09-007 December 29, 2009 Page 6 McBride”) is a public official 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. 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). Mr. McBride would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of a standard monthly utility bill from PECO that is pre-fixed, routine, and uncontested. However, Mr. McBride would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in the approval of payment of PECO bill(s) that would not meet the aforesaid criteria. 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. Advice of Counsel 09-560 is affirmed as modified. This matter has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair