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HomeMy WebLinkAbout10-619 Reiss ADVICE OF COUNSEL October 18, 2010 Jonathan J. Reiss, Esquire Grim, Biehn & Thatcher 104 S. Sixth Street P.O. Box 215 Perkasie, PA 18944-0215 10-619 Dear Mr. Reiss: This responds to your letter dated September 8, 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 and vice chairperson of a township board of supervisors, who also serves as a member of a municipal authority board, as to participating in decisions of the township board of supervisors regarding sewer connections in the township to the municipal authority’s sewer system. Facts: As Solicitor for Plumstead Township (“Township”), located in Bucks County, Pennsylvania, you have been authorized by Stacey Mulholland (“Ms. Mulholland”), a Member and Vice Chairperson of the Township Board of Supervisors, to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. The Township is governed by a five-Member Board of Supervisors. Ms. Mullholland’s current term of office runs through 2013. The Bucks County Water and Sewer Authority (“Authority”) provides public sewer to parts of the Township. In 2005, the Authority commenced litigation (“the Lawsuit”) against the Township in the Bucks County Court of Common Pleas (“the Court”). On March 27, 2008, the President Judge of the Court entered an Order approving a Stipulation and Agreement (“the Settlement”) which settled the Lawsuit. You state that part of the Settlement allocated 1,125 sewer Equivalent Dwelling Units (“EDUs”) to be provided by the Authority to an area within the Plumstead Township Act 537 Plan commonly referred to as the Public Sewer District or Development District. You state that the Settlement requires the Township Board of Supervisors to approve all new sewer connections in the Township to the Authority’s sewer system based upon a standard of feasibility which gives the Supervisors discretion whether to allow such connections to occur. You state that a customer with a new sewer connection may Reiss, 10-619 October 18, 2010 Page 2 have to pay a tapping or connection fee to the Authority as well as ongoing sewer rentals. In 2010, Ms. Mulholland was appointed to the Authority Board by the Bucks County Commissioners. You state that a question has arisen as to whether Ms. Mulholland must recuse herself when a sewer EDU connection request, seeking permission to connect to the Authority’s sewer system, is before the Township Board of Supervisors. You state that pending an advisory opinion from the State Ethics Commission, Ms. Mulholland has recused herself from participating in discussions, deliberations, and decisions of the Township Board of Supervisors regarding such requests. Based upon the above submitted facts, you ask whether the Ethics Act would require Ms. Mulholland to abstain or recuse herself from any decision by the Township Board of Supervisors to allow or deny a sewer connection in the Township to the Authority’s sewer system. 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 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. Both as a Member and Vice Chairperson of the Township Board of Supervisors and as a Member of the Authority Board, Ms. Mulholland is a public official as that term is defined in the Ethics Act, and therefore she is 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 Reiss, 10-619 October 18, 2010 Page 3 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 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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. Reiss, 10-619 October 18, 2010 Page 4 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. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, Ms. Mulholland would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the Authority but that would not financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. You are advised that absent a basis for a conflict of interest such as a private pecuniary benefit to Ms. Mulholland, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Ms. Mulholland would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in decision(s) by the Township Board of Supervisors to allow or deny sewer connection(s) in the Township to the Authority’s sewer system. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code or the Municipality Authorities Act. Conclusion: Both as a Member and Vice Chairperson of the Board of Supervisors of Plumstead Township (“Township”), located in Bucks County, Pennsylvania, and as a Member of the Board of the Bucks County Water and Sewer Authority (“Authority”), Stacey Mulholland (“Ms. Mulholland”) 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. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, Ms. Mulholland would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the Authority but that would not financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Absent a basis for a conflict of interest such as a private pecuniary benefit to Ms. Mulholland, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Ms. Mulholland would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in decision(s) by the Township Board of Supervisors to allow Reiss, 10-619 October 18, 2010 Page 5 or deny sewer connection(s) in the Township to the Authority public sewer system. 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