HomeMy WebLinkAbout11-515 Tobin
ADVICE OF COUNSEL
March 23, 2011
Diane Tobin
7 Maple Avenue
Pine Grove, PA 17963
11-515
Dear Ms. Tobin:
This responds to your letter dated February 3, 2010 (postmarked February 3,
2011, and received February 4, 2011), 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 with regard to voting on issue(s) that would involve a non-profit organization
formed to build a library and technology center in the local area where: (1) the township
supervisor is currently a general member of the non-profit organization and also serves
as the chair for small fundraisers for the non-profit organization; (2) the township
supervisor’s son is a member of the board of directors of the non-profit organization;
and (3) the township supervisor’s daughter-in-law is the secretary of the board of
directors of the non-profit organization.
Facts:
As a Supervisor for Pine Grove Township (“Township”), located in
Schuylkill 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 a non-profit organization named “The Paraclete Foundation” (“the
Foundation”) was formed to build a library and technology center in the local area. In
2008, you resigned from serving as the Secretary of the Foundation’s Board of Directors
(“Board of Directors”).
You are currently a general member of the Foundation, in which capacity you
have voting privileges only as to the appointment or reappointment of Members of the
Board of Directors. You also currently serve as the chair for small fundraisers for the
Foundation. You state that the chair for small fundraisers plans and runs the annual
bingo fundraiser and assists the Treasurer with sub and pizza fundraisers. You further
state that the position of chair for small fundraisers is not a Director position for the
Foundation and has no voting privileges at meetings of the Board of Directors.
Tobin, 11-515
March 23, 2011
Page 2
You state that your son is a Member of the Foundation’s Board of Directors and
that your daughter-in-law is the Secretary of the Foundation’s Board of Directors.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would prohibit you from voting on issue(s) before the Township Board of
Supervisors that would involve the Foundation, including: (1) whether the Township
should make a donation to the Foundation or the establishment of the amount of any
such donation; and (2) issues involving cooperation or agreements between the
Township Board of Supervisors and the Foundation. As to the latter, the submitted
facts do not indicate whether such cooperation or agreements between the Township
Board of Supervisors and the Foundation would financially impact the Foundation.
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).
Tobin, 11-515
March 23, 2011
Page 3
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.
"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.
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.
A non-profit entity is a “business” as that term is defined by the Ethics Act.
Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009).
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 advocating for a particular result.
Juliante, Order 809.
Tobin, 11-515
March 23, 2011
Page 4
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 the Foundation is a business with which your son is associated in his
capacity as a Member of the Board of Directors. See, Rendell, supra. 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 any matter(s) before the Township Board of Supervisors
that would financially impact the Foundation, including but not limited to whether the
Township should make a donation to the Foundation or the establishment of the amount
of any such donation. In each instance of a conflict of interest, you 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.
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 Pine Grove Township (“Township”), located in
Schuylkill 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. Based
upon the submitted facts that: (1) a non-profit organization named “The Paraclete
Foundation” (“the Foundation”) was formed to build a library and technology center in
the local area; (2) in 2008, you resigned from serving as the Secretary of the
Foundation’s Board of Directors (“Board of Directors”); (3) you are currently a general
member of the Foundation, in which capacity you have voting privileges only as to the
appointment or reappointment of Members of the Board of Directors; (4) you also
currently serve as the chair for small fundraisers for the Foundation; (5) the chair for
small fundraisers plans and runs the annual bingo fundraiser and assists the Treasurer
with sub and pizza fundraisers; (6) the position of chair for small fundraisers is not a
Director position for the Foundation and has no voting privileges at meetings of the
Board of Directors; (7) your son is a Member of the Foundation’s Board of Directors;
and (8) your daughter-in-law is the Secretary of the Foundation’s Board of Directors,
you are advised as follows. The Foundation is a business with which your son is
associated in his capacity as a Member of the Board of Directors. 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 any matter(s) before the Township Board of Supervisors
that would financially impact the Foundation, including but not limited to whether the
Township should make a donation to the Foundation or the establishment of the amount
of any such donation. In each instance of a conflict of interest, you 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. 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
Tobin, 11-515
March 23, 2011
Page 5
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