HomeMy WebLinkAbout12-528 Knappenberger
ADVICE OF COUNSEL
April 16, 2012
Judith M. Knappenberger, Vice Chairman
Penn Forest Township Board of Supervisors
2010 State Route 903
Jim Thorpe, PA 18229
12-528
Dear Ms. Knappenberger:
This responds to your letter of February 22, 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 member
and vice chairman of a township board of supervisors with regard to voting on matters
pertaining to her nephew or her nephew’s spouse.
Facts:
As a Member and Vice Chairman of the Board of Supervisors (“Board of
Supervisors” or “Board”) of Penn Forest Township (“Township”), located in Carbon
County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics
Commission. You have submitted facts that may be fairly summarized as follows.
The Township is governed by a five-Member Board. You state that a problem
arises when one Member of the Board abstains from voting due to the perception of a
conflict of interest and a tie vote occurs among the four remaining Board Members.
Noting the Ethics Act’s definitions of the terms “conflict” or “conflict of interest”
and “immediate family,” you state that due to the perception of a conflict of interest, you
continually refrain from voting on any issues before the Board that pertain to your
nephew, Keith Knappenberger, or his spouse, Sherry Knappenberger. You state that
while you would prefer to refrain from casting a vote on such issues based upon the
“perception” of a conflict of interest, you would like to permit yourself, in the event of a
tie vote by the four remaining Board Members, to vote to break the tie.
You state that you would submit a written memorandum (“Memorandum”) to be
filed with the recording secretary for the meeting at which the vote would be taken. You
state that the Memorandum “will state that I am NOT required to abstain regarding the
following issue/motion pertaining to Keith Knappenberger or Sherry Knappenberger,
however, to avoid the appearance of a conflict of interest I will abstain UNLESS there is
a TIE vote at which time I will exercise my right to vote to break a tie.” February 22,
2012, Advisory Request Letter of Knappenberger, at paragraph 5. You state that you
have not voted based on a tie in the past.
Knappenberger, 12-528
April 16, 2012
Page 2
You seek an advisory from the Pennsylvania State Ethics Commission to
“validate” your decision for handling this matter. Id., at paragraph 6.
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As a Member and Vice Chairman of the Township Board of Supervisors, 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).
Knappenberger, 12-528
April 16, 2012
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.
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.
Subject to the statutory exceptions to the definition of “conflict” or “conflict of
interest,” pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before the Board of Supervisors that would financially impact you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated. Your nephew and his spouse are not members of your
“immediate family” as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics
Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d
1211 (1998) (Holding that a relative not encompassed by the family relationships listed
Knappenberger, 12-528
April 16, 2012
Page 4
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); Swade, Advice 11-569.
Since your nephew and his spouse are not members of your immediate family,
you would not have a conflict of interest under Section 1103(a) of the Ethics Act in
matters before the Board of Supervisors that would financially impact your nephew
and/or his spouse but that would not financially impact you, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated. Therefore, absent some basis for a conflict of interest such as a private
pecuniary benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, Section 1103(a) of the Ethics
Act would not prohibit you from voting on matter(s) before the Board of Supervisors
pertaining to your nephew and/or his spouse.
You are further advised that this advisory is limited to addressing the restrictions
and requirements of Sections 1103(a) and 1103(j) of the Ethics Act. The State Ethics
Commission does not have the authority to address the validity of step(s) that you
propose to take when you would not have a conflict of interest in matter(s) before the
Board of Supervisors pertaining to your nephew and/or his spouse.
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 Member and Vice Chairman of the Board of Supervisors
(“Board of Supervisors”) of Penn Forest Township, located in Carbon 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. Subject to the statutory
exceptions to the definition of “conflict” or “conflict of interest” set forth at Section 1102
of the Ethics Act, pursuant to Section 1103(a) of the Ethics Act, you would have a
conflict of interest in matters before the Board of Supervisors that would financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated. Your nephew, Keith Knappenberger,
and his spouse, Sherry Knappenberger, are not members of your “immediate family” as
that term is defined in the Ethics Act. Since your nephew and his spouse are not
members of your immediate family, you would not have a conflict of interest under
Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would
financially impact your nephew and/or his spouse but that would not financially impact
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated. Therefore, absent some basis for a conflict of
interest such as a private pecuniary benefit to you, a member of your immediate family,
or a business with which you or a member of your immediate family is associated,
Section 1103(a) of the Ethics Act would not prohibit you from voting on matter(s) before
the Board of Supervisors pertaining to your nephew and/or his spouse. 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
Knappenberger, 12-528
April 16, 2012
Page 5
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