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HomeMy WebLinkAbout12-517 LaLonde ADVICE OF COUNSEL March 20, 2012 Casey LaLonde, Township Manager West Goshen Township 1025 Paoli Pike West Chester, PA 19380-4699 12-517 Dear Mr. LaLonde: This responds to your letters dated January 9, 2012, and January 30, 2012, 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, who is also employed as the public works director for the township, with regard to: (1) voting on the annual list of appointed township officials, where such list would include the position of public works director; (2) voting on annual township budgets which would include some or all of his salary as the public works director; (3) participating in personnel decisions before the township board of supervisors which would pertain to his subordinates within the public works department; or (4) approving the monthly bills list and bills to be paid, where such bills would include his salary as the public works director. Facts: You are the Township Manager for West Goshen Township (“Township”). You request an advisory from the Pennsylvania State Ethics Commission on behalf of Township Supervisor Raymond H. Halvorsen (“Mr. Halvorsen”), based upon the following submitted facts. Mr. Halvorsen was elected as a Township Supervisor in November 2011, and he was sworn into office on January 3, 2012. For the past eleven years, Mr. Halvorsen has been employed as the Public Works Director for the Township. It is administratively noted that the Township Board of Supervisors (“Board of Supervisors”) consists of five Members. You pose the following questions: (1) Whether Mr. Halvorsen would be permitted to vote on the annual list of appointed Township officials, including the Township Manager, Finance Director, Public Works Director, Township Engineer, Zoning Officer, and LaLonde, 12-517 March 20, 2012 Page 2 the like, where the Board of Supervisors has historically voted on one motion which encompasses all of the appointed Township positions; (a) Whether Mr. Halvorsen would be permitted to vote to break a 2-2 tie vote of the other four Township Supervisors on the annual list of appointed Township officials; (2) Whether Mr. Halvorsen would be permitted to vote on the annual Township General Fund, Sewer Fund, Liquid Fuels and Refuse/Recycling budgets, as some or all of his salary as the Public Works Director would be included within such budgets; (3) Whether Mr. Halvorsen would be permitted to participate in any personnel decisions before the Board of Supervisors that would pertain to his subordinates within the Township Public Works Department; and (4) Whether Mr. Halvorsen would be permitted to approve the monthly bills list and bills to be paid, as his salary as the Public Works Director would be among those bills up for approval by the Board of Supervisors. 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. Both as a Township Supervisor and as the appointed Public Works Director for the Township, Mr. Halvorsen is a public official as that term is defined in the Ethics Act, and therefore he 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 LaLonde, 12-517 March 20, 2012 Page 3 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. 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 a statutory exception 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. Having established the above general principles, your specific questions shall now be addressed. In response to your first question, you are advised as follows. To the extent that the annual list of appointed Township officials would be voted on in its entirety by a single motion, and such list would include an appointment of Mr. Halvorsen to a LaLonde, 12-517 March 20, 2012 Page 4 compensated position such as the Public Works Director for the Township, Mr. Halvorsen would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the annual list of appointed Township officials. Cf., Yerke, Order 1555. You are further advised that because the Board of Supervisors is comprised of five Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit Mr. Halvorsen to vote to break a 2-2 tie vote of the other four Township Supervisors regarding the annual list of appointed Township officials, because such exception is available exclusively to members of three member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, Pavlovic, Opinion 02-005. With respect to your second question, you are advised as follows. To the extent a Township budget--including but not limited to the annual Township General Fund, Sewer Fund, Liquid Fuels and Refuse/Recycling budgets--would include funding for some or all of Mr. Halvorsen’s salary as the Public Works Director as a separate line item, Mr. Halvorsen would have a conflict of interest as to that particular line item. However, if Mr. Halvorsen’s salary as the Public Works Director would not be a separate line item on such budget, Mr. Halvorsen would have a conflict of interest as to the budget in its entirety. With regard to your third question, you are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Halvorsen, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit Mr. Halvorsen from participating in personnel decision(s) before the Board of Supervisors that would pertain to his subordinate(s) within the Township Public Works Department. In response to your fourth question, you are advised as follows. Mr. Halvorsen, in his capacity as a Township Supervisor, generally would have a conflict of interest in approving the monthly bills list/bills to be paid where his salary as Public Works Director would be among those bills up for approval by the Board of Supervisors unless the amount of his salary would be pre-fixed, routine, and uncontested. Cf., Yezzi, Order 825 at 58; Krushinski, Order 168; Maholick, Opinion 90-010; Brooks, Opinion 89-023. Thus, subject to the condition that the salary to be paid to Mr. Halvorsen as Public Works Director would be pre-fixed, routine, and uncontested, and would not include any amounts that would not be pre-fixed, routine, and uncontested, Mr. Halvorsen would not have a conflict of interest in approving the monthly bills list/bills to be paid that would include payment of such salary to him. As noted above, in each instance of a conflict of interest, Mr. Halvorsen would be required to abstain from participation, which would include voting unless a statutory exception of Section 1103(j) of the Ethics Act would be applicable. The exception for breaking a tie vote would not be applicable to Mr. Halvorsen. 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: Both as a Supervisor for West Goshen Township (“Township”) and as the appointed Public Works Director for the Township, Raymond H. Halvorsen (“Mr. Halvorsen”) is a public official subject to the provisions of the Public Official and LaLonde, 12-517 March 20, 2012 Page 5 Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. To the extent that the annual list of appointed Township officials would be voted on in its entirety by a single motion, and such list would include an appointment of Mr. Halvorsen to a compensated position such as the Public Works Director for the Township, Mr. Halvorsen would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the annual list of appointed Township officials. Because the Township Board of Supervisors (“Board of Supervisors”) is comprised of five Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit Mr. Halvorsen to vote to break a 2-2 tie vote of the other four Township Supervisors regarding the annual list of appointed Township officials, because such exception is available exclusively to members of three member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. To the extent a Township budget--including but not limited to the annual Township General Fund, Sewer Fund, Liquid Fuels and Refuse/Recycling budgets--would include funding for some or all of Mr. Halvorsen’s salary as the Public Works Director as a separate line item, Mr. Halvorsen would have a conflict of interest as to that particular line item. However, if Mr. Halvorsen’s salary as the Public Works Director would not be a separate line item on such budget, Mr. Halvorsen would have a conflict of interest as to the budget in its entirety. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Halvorsen, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit Mr. Halvorsen from participating in personnel decision(s) before the Board of Supervisors that would pertain to his subordinate(s) within the Township Public Works Department. Mr. Halvorsen, in his capacity as a Township Supervisor, generally would have a conflict of interest in approving the monthly bills list/bills to be paid where his salary as Public Works Director would be among those bills up for approval by the Board of Supervisors unless the amount of his salary would be pre-fixed, routine, and uncontested. Subject to the condition that the salary to be paid to Mr. Halvorsen as Public Works Director would be pre-fixed, routine, and uncontested, and would not include any amounts that would not be pre-fixed, routine, and uncontested, Mr. Halvorsen would not have a conflict of interest in approving the monthly bills list/bills to be paid that would include payment of such salary to him. In each instance of a conflict of interest, Mr. Halvorsen would be required to abstain from participation, which would include voting unless a statutory exception of Section 1103(j) of the Ethics Act would be applicable. The exception for breaking a tie vote would not be applicable to Mr. Halvorsen. 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 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 LaLonde, 12-517 March 20, 2012 Page 6 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