HomeMy WebLinkAbout10-598 Flicker
ADVICE OF COUNSEL
July 16, 2010
Louis F. Smith, Jr.
Township Manager
Board of Supervisors
East Goshen Township
1580 Paoli Pike
West Chester, PA 19380-6199
10-598
Dear Mr. Smith:
This responds to your letters dated May 27, 2010, and June 2, 2010, 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 of
a township advisory group with regard to performing duties as a township advisory
group member where said individual, in a private capacity, is employed with a firm
which serves as the engineer for the municipal authority that owns the township sewer
system.
Facts:
You are the Township Manager for East Goshen Township (“Township”),
located in Chester County, Pennsylvania. You have been authorized by Eric Flicker
(“Mr. Flicker”) to request an advisory from the Pennsylvania State Ethics Commission
on his behalf. You have submitted facts, the material portion of which may be fairly
summarized as follows.
The Township Board of Supervisors (“Board”) created the East Goshen
Township Advisory Group (“the TAG”). You have submitted a copy of the TAG’s
Mission Statement (“Mission Statement”), which document is incorporated herein by
reference. The Mission Statement provides, in pertinent part, as follows:
Mission
The mission of the East Goshen Township Advisory Group is
to develop recommendations for the East Goshen Board of
Supervisors to improve the financial position of East Goshen
Township through the following:
?
improvements to Township processes and
procedures
?
modification of Township services or programs
?
optimization of Township assets
?
identification of possible revenue enhancements
Smith, 10-598
July 16, 2010
Page 2
. . .
Scope and Responsibilities
The Township Advisory Group will engage in a
comprehensive review of all aspects of the Township’s
operation, including but not limited to Administration, Code
Enforcement, Financial, Public Works, Recreation, Refuse &
Recycling and Sewer. They will review any activity,
program, policy, procedure, process, operation, contract,
agreement or plan that generates or consumes Township
resources.
The Township Advisory Group is strictly advisory in nature.
It will make observations, provide analyses and make
recommendations. Approval and implementation of any of
the Township Advisory Group’s recommendations will be
solely at the discretion of Board of Supervisors.
Township Advisory Group Composition
The Township Advisory Group will be composed of
volunteers, all residents of East Goshen Township, and all
approved by the East Goshen Township Board of
Supervisors. The Township Advisory Group and sub-groups
may use appropriate outside expert resources, as needed.
Like the Township Advisory Group, any outside resources
will be asked to provide their services pro bono.
. . . .
Mission Statement, at 1.
You state that the Board appointed seven residents, including Mr. Flicker, to the
TAG. Mr. Flicker is employed by a firm named “Pennoni Associates” (“the Firm”), which
has done work for the Township in the past. The Firm currently is the engineer for the
East Goshen Municipal Authority (“the Authority”) and has a contract with the Authority
to provide inspection services for the Ridley Creek Sewer Plant Project.
You state that at a meeting of the Board, a resident expressed concern about Mr.
Flicker’s appointment to the TAG since the Firm is doing work for the Authority.
Based upon the above submitted facts, you ask whether Mr. Flicker would have a
conflict of interest under the Ethics Act with regard to performing duties as a TAG
Member while employed with the Firm.
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, pursuant to the same aforesaid Sections of the
Ethics Act, 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
Smith, 10-598
July 16, 2010
Page 3
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.
In the instant matter, the initial question to be addressed is whether, as a
Member of the TAG, Mr. Flicker would be considered a “public official” subject to the
Ethics Act.
The Ethics Act defines the term “public official” as follows:
§ 1102. Definitions
"Public official.”
Any person elected by the public or
elected or appointed by a governmental body or an
appointed official in the executive, legislative or judicial
branch of this Commonwealth or any political subdivision
thereof, provided that it shall not include members of
advisory boards that have no authority to expend public
funds other than reimbursement for personal expense or to
otherwise exercise the power of the State or any political
subdivision thereof.
65 Pa.C.S. § 1102.
The related term “governmental body” is defined as follows:
§ 1102. Definitions
"Governmental body."
Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
65 Pa.C.S. § 1102.
The regulations of the State Ethics Commission similarly define the term “public
official” and set forth the following additional criteria:
(i) The following criteria will be used to determine if
the exception in this paragraph is applicable:
(A) The body will be deemed to have the power to
expend public funds if the body may commit funds or may
otherwise make payment of moneys, enter into contracts,
invest funds held in reserves, make loans or grants, borrow
money, issue bonds, employ staff, purchase, lease, acquire
or sell real or personal property without the consent or
approval of the governing body and the effect of the power to
expend public funds has a greater than de minimis economic
impact on the interest of a person.
(B) The body will be deemed to have the authority to
otherwise exercise the power of the Commonwealth or a
political subdivision if one of the following exists:
Smith, 10-598
July 16, 2010
Page 4
(I) The body makes binding decisions or orders
adjudicating substantive issues which are appealable to a
body or person other than the governing authority.
(II) The body exercises a basic power of government
and performs essential governmental functions.
(III) The governing authority is bound by statute or
ordinance to accept and enforce the rulings of the body.
(IV) The body may compel the governing authority to
act in accordance with the body’s decisions or restrain the
governing authority from acting contrary to the body’s
decisions.
(V) The body makes independent decisions which
are effective without approval of the governing authority.
(VI) The body may adopt, amend and repeal
resolutions, rules, regulations or ordinances.
(VII) The body has the power of eminent domain or
condemnation.
(VIII) The enabling legislation of the body indicates
that the body is established for exercising public powers of
the Commonwealth or a political subdivision.
(ii) The term does not include judges and inspectors
of elections, notary publics and political party officers.
(iii) The term generally includes persons in the
following offices:
(A) Incumbents of offices filled by nomination of the
Governor and confirmation of the Senate.
(B) Heads of executive, legislative and independent
agencies, boards and commissions.
(C) Members of agencies, boards and commissions
appointed by the General Assembly or its officers.
(D) Persons appointed to positions designated as
officers by the Commonwealth or its political subdivisions.
(E) Members of municipal, industrial development,
housing, parking and similar authorities.
(F) Members of zoning hearing boards and similar
quasi-judicial bodies.
(G) Members of the public bodies meeting the
criteria in paragraph (i)(A).
51 Pa. Code § 11.1.
Smith, 10-598
July 16, 2010
Page 5
In applying the Ethics Act’s definition of the term “public official,” the first portion
of the definition provides that a public official is a person who: (1) is elected by the
public; (2) is elected or appointed by a governmental body; or (3) is an appointed official
in the executive, legislative, or judicial branch of the Commonwealth or a political
subdivision of the Commonwealth. Muscalus, Opinion 02-007. The fact that Mr. Flicker
was appointed to the TAG by the Board satisfies the first portion of the definition. As for
whether Mr. Flicker would fall within the statutory exception for members of purely
advisory boards lacking authority to expend public funds other than reimbursement for
personal expense or to otherwise exercise the power of the State or a political
subdivision, the Mission Statement clearly provides that the TAG is “strictly advisory in
nature.” Mission Statement, at 1. However, the Mission Statement is ambiguous as to
whether the TAG’s power to “use appropriate outside expert resources, as needed”
includes the power to expend public funds. Id. Therefore, based upon the submitted
facts, you are advised as follows.
If the TAG has no power to expend public funds beyond reimbursement for
personal expense, then Mr. Flicker is not a “public official” subject to the Ethics Act, and
the Ethics Act would not prohibit Mr. Flicker from performing duties as a Member of the
TAG while employed with the Firm.
If the TAG has power to expend public funds beyond reimbursement for personal
expense, then Mr. Flicker is a “public official” subject to 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).
Smith, 10-598
July 16, 2010
Page 6
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
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.
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, 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 (Gorman, Order 1041; Rembold, Order 1303; Wilcox,
Order 1306), or private client(s) (Miller, Opinion 89-024; Kannebecker, Opinion 92-010).
If the private employer or business with which the public official/public employee
is associated or a private customer/client would have a matter pending before the
governmental body, then generally, the public official/public employee would have a
conflict of interest as to such matter. Miller, supra; Kannebecker, supra. A reasonable
and legitimate expectation that a business relationship will form may also support a
Smith, 10-598
July 16, 2010
Page 7
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 from
participation. The abstention requirement would not be limited merely to voting, but
rather 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 would require 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.
If Mr. Flicker is a “public official” subject to the Ethics Act in his capacity as a
Member of the TAG, then pursuant to Section 1103(a) of the Ethics Act, Mr. Flicker
generally would have a conflict of interest in matters before the TAG that would
financially impact the Firm or its client(s). Miller, supra; Kannebecker, supra.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
Based upon the submitted facts that: (1) the Board of Supervisors
(“Board”) of East Goshen Township (“Township”) created the East Goshen Township
Advisory Group (“the TAG”) and appointed Eric Flicker (“Mr. Flicker”) to serve as a
Member of the TAG; (2) Mr. Flicker is employed by a firm named “Pennoni Associates”
(“the Firm”), which has done work for the Township in the past; (3) the Firm currently is
the engineer for the East Goshen Municipal Authority (“the Authority”) and has a
contract with the Authority to provide inspection services for the Ridley Creek Sewer
Plant Project; (4) an issue has arisen as to whether Mr. Flicker would have a conflict of
interest under the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq., with regard to performing duties as a TAG Member while employed with
the Firm; and (5) the TAG’s Mission Statement (“Mission Statement”) provides that the
TAG is “strictly advisory in nature” but is ambiguous as to whether the TAG’s power to
“use appropriate outside expert resources, as needed” includes the power to expend
public funds, you are advised as follows.
If the TAG has no power to expend public funds beyond reimbursement for
personal expense, then Mr. Flicker is not a “public official” subject to the Ethics Act, and
the Ethics Act would not prohibit Mr. Flicker from performing duties as a Member of the
TAG while employed with the Firm. If the TAG has power to expend public funds
beyond reimbursement for personal expense, then Mr. Flicker is a “public official”
subject to the Ethics Act and, pursuant to Section 1103(a) of the Ethics Act, Mr. Flicker
generally would have a conflict of interest in matters before the TAG that would
financially impact the Firm or its client(s). In each instance of a conflict of interest, a
public official/public employee would be required to abstain from participation. The
abstention requirement would not be limited merely to voting, but rather would extend to
any use of authority of office. Subject to certain statutory exceptions, in each instance
of a voting conflict, Section 1103(j) of the Ethics Act would require 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.
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.
Smith, 10-598
July 16, 2010
Page 8
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