Loading...
HomeMy WebLinkAbout10-629 Starr ADVICE OF COUNSEL December 16, 2010 Dona L. Starr rd 53 West 33 Street Reading, PA 19606 10-629 Dear Ms. Starr: This responds to your letter dated October 28, 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 township supervisor as to participating in discussions or votes by the township board of supervisors pertaining to a fire company when: (1) in September 2010, the supervisor’s spouse, through a business, performed concrete work for the fire company; (2) such work was completed; (3) the supervisor’s spouse was paid $7,500 for such work; and (4) the supervisor’s spouse will not be paid any more money for such work. Facts: As a Supervisor for Exeter Township (“Township”), located in Berks County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You state that in September 2010, your husband, through S&S Concrete (“S&S”), performed concrete work for the Exeter Township Fire Company (“Fire Company”). Your husband was paid $7,500.00 for such work, and he realized a personal net gain of $3,250.00. You state that the aforesaid concrete work was completed and that your husband will not be paid any more money for such work. You state that since the aforesaid concrete work for the Fire Company was completed, you have abstained from participating in discussions or votes on issues involving the Fire Company and have not signed any checks for the Fire Company. You further state that you resigned from the Fire Advisory Task Board, a volunteer committee. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to participating in discussions or votes by the Township Board of Supervisors pertaining to the Fire Company. Starr, 10-629 December 16, 2010 Page 2 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. As a Township Supervisor, you are a public official as that term is defined in the Ethics Act, and therefore you are 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). 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 Starr, 10-629 December 16, 2010 Page 3 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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. If a business with which the public official/public employee or immediate family member is associated or a private customer/client would have a matter pending before the governmental body, the public official/public employee would generally have a conflict of interest as to such matter. Kannebecker, Opinion 92-010; Miller, Opinion 89- 024. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89-002. 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. Starr, 10-629 December 16, 2010 Page 4 In applying the above provisions of the Ethics Act to the instant matter, you are advised that S&S is a business with which your husband is associated to the extent that he is a director, officer, owner, or employee of S&S or has a financial interest in S&S. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you, your husband, a business with which your husband is associated, or the customer(s)/client(s) of a business with which your husband is associated. As a general rule, a conflict would not exist as to former customer(s)/client(s), but under certain circumstances, a conflict could exist as to a former customer/client depending upon factors such as the number of prior business transactions involving the given customer/client and the period of time over which such occurred. Kannebecker, supra; Yorczyk, Advice 07-506. Based upon the submitted facts that the concrete work performed by your husband through S&S for the Fire Company in September 2010 was completed, your husband was paid $7,500.00 for such work, and he will not be paid any more money for such work, you are advised as follows. Subject to the conditions that: (1) there would be no reasonable expectation of a business relationship forming again between your husband/a business with which your husband is associated and the Fire Company; and (2) there would be no other basis for a conflict of interest under the Ethics Act, you would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to participating in discussions or votes by the Township Board of Supervisors pertaining to the Fire Company. 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. Conclusion: As a Supervisor for Exeter Township (“Township”), located in Berks County, Pennsylvania, 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. S&S Concrete (“S&S”) is a business with which your husband is associated to the extent that he is a director, officer, owner, or employee of S&S or has a financial interest in S&S. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you, your husband, a business with which your husband is associated, or the customer(s)/client(s) of a business with which your husband is associated. As a general rule, a conflict would not exist as to former customer(s)/client(s), but under certain circumstances, a conflict could exist as to a former customer/client depending upon factors such as the number of prior business transactions involving the given customer/client and the period of time over which such occurred. Based upon the submitted facts that the concrete work performed by your husband through S&S for the Fire Company in September 2010 was completed, your husband was paid $7,500.00 for such work, and he will not be paid any more money for such work, you are advised as follows. Subject to the conditions that: (1) there would be no reasonable expectation of a business relationship forming again between your husband/a business with which your husband is associated and the Fire Company; and (2) there would be no other basis for a conflict of interest under the Ethics Act, you would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to participating in discussions or votes by the Township Board of Supervisors pertaining to the Fire Company. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Starr, 10-629 December 16, 2010 Page 5 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