HomeMy WebLinkAbout11-566 Young
ADVICE OF COUNSEL
December 2, 2011
Lisa A. Young, Esquire
4442 Route 309 Suite A
Schnecksville, PA 18078
11-566
Dear Ms. Young:
This responds to your letters dated October 28, 2011, and November 1, 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 either of two
township supervisors serving on a three-member board of supervisors with regard to
making or voting on a motion pertaining to a request for an inter-municipal transfer of a
liquor license made on behalf of a volunteer fire company, where: (1) both of the
aforesaid township supervisors are members of the volunteer fire company; and (2) one
of the aforesaid township supervisors is chief of the volunteer fire company, and the
other of the aforesaid township supervisors is a member of the volunteer fire company’s
board of trustees.
Facts:
As Solicitor for North Whitehall Township (“Township”), you have been
authorized by Township Supervisors Ronald E. Stahley (“Mr. Stahley”) and Ronald J.
Heintzelman (“Mr. Heintzelman”) to request an advisory from the Pennsylvania State
Ethics Commission on their behalf. You have submitted facts, the material portion of
which may be fairly summarized as follows.
The Township has received a request for an inter-municipal transfer of a liquor
license (“License Transfer Request”) on behalf of Community Fire Company #1 of North
Whitehall Township (“Fire Company”). The Fire Company has requested the inter-
municipal transfer to allow the Fire Company to obtain a club catering license from a
club in Allentown. The Fire Company wishes to serve alcoholic beverages at its facility
when the facility is rented for wedding receptions and other social events. Such rentals
are used to generate funds for the operation of the Fire Company.
The Township is governed by a three-Member Board of Supervisors (“Board of
Supervisors”). Two of the Township Supervisors, specifically Mr. Stahley and Mr.
Heintzelman, are members of the Fire Company. Mr. Stahley also serves as Chief of
the Fire Company, and Mr. Heintzelman also serves as a member of the Fire
Company’s Board of Trustees. Mr. Stahley and Mr. Heintzelman do not receive any
compensation or reimbursement for their service with the Fire Company. Mr.
Heintzelman has several family members who serve the Fire Company, and they
Young, Advice 11-566
December 2, 2011
Page 2
receive no compensation or reimbursement for their service. You state that the third
Township Supervisor (“Third Supervisor”) is not a member or officer of the Fire
Company.
The Fire Company is a volunteer fire company. The Fire Company receives
approximately eight percent of its revenue from Township contributions, with its
remaining revenue coming from grants, donations, fund drives, fund raising events, and
other sources. You state that each Township fire company receives an equal
contribution from the Township and that each fire company received $24,000 from the
Township this year. You further state that each Township fire company operates as an
individual entity and owns its own facilities. You additionally state that the bylaws of the
Fire Company require any residue assets after the payment of any debt to be paid over
to the Township should the Fire Company cease its operations. No individuals may
receive a monetary benefit should the Fire Company disband.
The Fire Company’s License Transfer Request is scheduled for hearing before
the Board of Supervisors on December 6, 2011. You state that the Third Supervisor
might be absent from the Board’s hearing on the License Transfer Request due to a
work schedule and travel conflicts which sometimes require the Third Supervisor to be
absent from Township meetings and hearings. You note that a failure of the Board of
Supervisors to hold a hearing and render a decision as to the Fire Company’s License
Transfer Request within the statutorily prescribed time period would result in a deemed
approval by the Board of Supervisors.
Based upon the above submitted facts, you seek guidance as to the voting
procedures that should be followed by Mr. Stahley and Mr. Heintzelman at the hearing
on the Fire Company’s License Transfer Request where: (1) the Third Supervisor would
be present at such hearing; (2) the Third Supervisor would be present at such hearing
but would not be willing to make a motion; or (3) the Third Supervisor would be absent
from such hearing.
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 Township Supervisors, Mr. Stahley and Mr. Heintzelman are public officials
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
Young, Advice 11-566
December 2, 2011
Page 3
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 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.
Young, Advice 11-566
December 2, 2011
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 addressing your inquiry, the threshold issue is whether the Fire Company
would be considered a part of the Township.
For purposes of the Ethics Act, depending upon the circumstances in a given
case, a fire company may be considered to be part of a governmental body/political
subdivision or a private entity. Among the most significant factors in determining the
status of a fire company is the degree to which the fire company is funded and
controlled by the governmental body/political subdivision, or alternatively raises its own
funds and governs itself.
Based upon the submitted facts that: (1) the Fire Company is a volunteer fire
company; (2) the Fire Company receives approximately eight percent of its revenue
from Township contributions, with its remaining revenue coming from grants, donations,
fund drives, fund raising events, and other sources; (3) each Township fire company
receives an equal contribution from the Township, and each fire company received
$24,000 from the Township this year; (4) each Township fire company operates as an
individual entity and owns its own facilities; (5) the bylaws of the Fire Company require
any residue assets after the payment of any debt to be paid over to the Township
should the Fire Company cease its operations; and (6) no individuals may receive a
monetary benefit should the Fire Company disband, you are advised that the Fire
Company would be considered to be a private entity and would not be considered part
of the Township. Cf., Woy, Advice 10-627; Snyder, Advice 08-527; Petruso, Advice 94-
631.
As a private entity, the Fire Company is a “business” as that term is defined by
the Ethics Act. The Fire Company is a business with which Mr. Stahley is associated in
his capacity as an officer. The Fire Company is a business with which Mr. Heintzelman
is associated in his capacity as a director. As to each Township Supervisor (that is, Mr.
Stahley or Mr. Heintzelman), the Township Supervisor generally would have a conflict of
interest under Section 1103(a) of the Ethics Act in matters before the Board of
Supervisors that would financially impact him or the Fire Company.
Mr. Stahley and Mr. Heintzelman would each specifically have a conflict of
interest in matters pertaining to the Fire Company’s License Transfer Request. Subject
to the voting conflict exceptions of Section 1103(j) of the Ethics Act, each Township
Supervisor (that is, Mr. Stahley or Mr. Heintzelman) would be required to abstain fully
from participation in each instance of a conflict of interest.
As for the procedures that should be followed depending upon whether the Third
Supervisor is or is not present at the hearing and is or is not willing to make a motion,
you are advised as follows.
Young, Advice 11-566
December 2, 2011
Page 5
The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act
are strictly limited to voting and do not authorize an individual with a conflict to make a
motion to put the matter in a posture for a vote. When two members on a three-
member board would have conflicts of interest, only the non-conflicted member could
make a motion. Since the non-conflicted member could not second his own motion and
it would be otherwise impossible to obtain a second to the motion, either of the two
conflicted members, having previously abstained and disclosed his conflict, could then
second the motion if he would so choose. The two conflicted members could not
discuss or advocate as to the motion. The two conflicted members could only vote on
the motion. Cf., Confidential Opinion, 04-003.
Therefore, only the Third Supervisor could make a motion as to the Fire
Company’s License Transfer Request. If such a motion would not be made, there
would be no opportunity for a motion to be seconded. If such a motion would be made,
either Mr. Stahley or Mr. Heintzelman, having previously abstained and disclosed his
conflict, could then second the motion if he would so choose. Mr. Stahley and Mr.
Heintzelman could not discuss or advocate as to the motion and could only vote on the
motion.
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 Supervisors for North Whitehall Township (“Township”), Ronald
E. Stahley (“Mr. Stahley”) and Ronald J. Heintzelman (“Mr. Heintzelman”) are public
officials 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) the Township
has received a request for an inter-municipal transfer of a liquor license (“License
Transfer Request”) on behalf of Community Fire Company #1 of North Whitehall
Township (“Fire Company”); (2) the Fire Company has requested the inter-municipal
transfer to allow the Fire Company to obtain a club catering license from a club in
Allentown; (3) the Fire Company wishes to serve alcoholic beverages at its facility when
the facility is rented for wedding receptions and other social events, and such rentals
are used to generate funds for the operation of the Fire Company; (4) the Township is
governed by a three-Member Board of Supervisors (“Board of Supervisors”); (5) two of
the Township Supervisors, specifically Mr. Stahley and Mr. Heintzelman, are members
of the Fire Company; (6) Mr. Stahley also serves as Chief of the Fire Company, and Mr.
Heintzelman also serves as a member of the Fire Company’s Board of Trustees; (7) Mr.
Stahley and Mr. Heintzelman do not receive any compensation or reimbursement for
their service with the Fire Company; (8) Mr. Heintzelman has several family members
who serve the Fire Company, and they receive no compensation or reimbursement for
their service; (9) the third Township Supervisor (“Third Supervisor”) is not a member or
officer of the Fire Company; (10) the Fire Company is a volunteer fire company; (11) the
Fire Company receives approximately eight percent of its revenue from Township
contributions, with its remaining revenue coming from grants, donations, fund drives,
fund raising events, and other sources; (12) each Township fire company receives an
equal contribution from the Township, and each fire company received $24,000 from the
Township this year; (13) each Township fire company operates as an individual entity
and owns its own facilities; (14) the bylaws of the Fire Company require any residue
assets after the payment of any debt to be paid over to the Township should the Fire
Company cease its operations; (15) no individuals may receive a monetary benefit
should the Fire Company disband; (16) the Fire Company’s License Transfer Request is
scheduled for hearing before the Board of Supervisors on December 6, 2011; (17) the
Third Supervisor might be absent from the Board’s hearing on the License Transfer
Request due to a work schedule and travel conflicts which sometimes require the Third
Supervisor to be absent from Township meetings and hearings; and (18) a failure of the
Young, Advice 11-566
December 2, 2011
Page 6
Board of Supervisors to hold a hearing and render a decision as to the Fire Company’s
License Transfer Request within the statutorily prescribed time period would result in a
deemed approval by the Board of Supervisors, you are advised as follows.
The Fire Company would be considered to be a private entity and would not be
considered part of the Township. As a private entity, the Fire Company is a “business”
as that term is defined by the Ethics Act. The Fire Company is a business with which
Mr. Stahley is associated in his capacity as an officer. The Fire Company is a business
with which Mr. Heintzelman is associated in his capacity as a director. As to each
Township Supervisor (that is, Mr. Stahley or Mr. Heintzelman), the Township Supervisor
generally would have a conflict of interest under Section 1103(a) of the Ethics Act in
matters before the Board of Supervisors that would financially impact him or the Fire
Company. Mr. Stahley and Mr. Heintzelman would each specifically have a conflict of
interest in matters pertaining to the Fire Company’s License Transfer Request. Subject
to the voting conflict exceptions of Section 1103(j) of the Ethics Act, each Township
Supervisor (that is, Mr. Stahley or Mr. Heintzelman) would be required to abstain fully
from participation in each instance of a conflict of interest. The two voting conflict
exceptions contained in Section 1103(j) of the Ethics Act are strictly limited to voting and
do not authorize an individual with a conflict to make a motion to put the matter in a
posture for a vote. When two members on a three-member board would have conflicts
of interest, only the non-conflicted member could make a motion. Therefore, only the
Third Supervisor could make a motion as to the Fire Company’s License Transfer
Request. If such a motion would not be made, there would be no opportunity for a
motion to be seconded. If such a motion would be made, either Mr. Stahley or Mr.
Heintzelman, having previously abstained and disclosed his conflict, could then second
the motion if he would so choose. Mr. Stahley and Mr. Heintzelman could not discuss
or advocate as to the motion and could only vote on the motion. 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