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Home My WebLink About11-537 McGrory ADVICE OF COUNSEL June 29, 2011 Joseph J. McGrory, Jr., Esquire Hamburg, Rubin, Mullin, Maxwell & Lupin, PC ACTS Center-Blue Bell 375 Morris Road Post Office Box 1479 Lansdale, PA 19446-0773 11-537 Dear Mr. McGrory: This responds to your letter dated May 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 for the appointment of her brother-in-law as the township solicitor. Facts: You request an advisory from the Pennsylvania State Ethics Commission on behalf of Colleen Eckman (“Ms. Eckman”). You have submitted facts that may be fairly summarized as follows. Ms. Eckman is a Supervisor for Lower Providence Township (“Township”). Ms. Eckman is also your sister-in-law. You are a principal with the law firm of Hamburg, Rubin, Mullin, Maxwell & Lupin, PC (“the Firm”), and you are the Chairman of the Firm’s Municipal Law Department. As an integral part of your practice of law for more than twenty-five years, you have served as solicitor or special counsel to municipalities and zoning hearing boards. You state that you have recently been approached regarding the possibility of you being appointed as the Solicitor for the Township. Based upon the above submitted facts, you pose the following questions: (1) Whether Ms. Eckman could vote for your appointment as the Township Solicitor without violating the Ethics Act; and (2) Whether your service as the Township Solicitor would violate the Ethics Act since Ms. Eckman is currently serving as a Township Supervisor. McGrory, 11-537 June 29, 2011 Page 2 You have proffered your own analysis of the legal issues that you have raised. 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, Ms. Eckman 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 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 McGrory, 11-537 June 29, 2011 Page 3 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. 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. 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. As Ms. Eckman’s brother-in-law, you are not a member of Ms. Eckman’s “immediate family” as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Commw. Ct. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 (1998) (Holding that a relative not encompassed by the family relationships listed in the Ethics Act’s definition of the term “immediate family”—in that case, an in- law—would not be considered a member of immediate family). Since you are not a member of Ms. Eckman’s immediate family, Section 1103(a) of the Ethics Act would not prohibit Ms. Eckman from voting for your appointment as the Township Solicitor. The Ethics Act would not prohibit you from serving as the Township Solicitor while Ms. Eckman is serving as a Township Supervisor. 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 Rules of Professional Conduct. McGrory, 11-537 June 29, 2011 Page 4 Conclusion: As a Supervisor for Lower Providence Township (“Township”), Colleen Eckman (“Ms. Eckman”) 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. As Ms. Eckman’s brother-in-law, you are not a member of Ms. Eckman’s “immediate family” as that term is defined in the Ethics Act. Since you are not a member of Ms. Eckman’s immediate family, Section 1103(a) of the Ethics Act would not prohibit Ms. Eckman from voting for your appointment as the Township Solicitor. The Ethics Act would not prohibit you from serving as the Township Solicitor while Ms. Eckman is serving as a Township Supervisor. 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