HomeMy WebLinkAbout12-538 Confidential
ADVICE OF COUNSEL
May 11, 2012
12-538
This responds to your letter dated April 4, 2012, by which you requested a
confidential 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
A, who is a B of a C, with regard to participating in discussions or votes by the township
board of As pertaining to a potential D or the township’s financing of an E for the C.
Facts:
You request a confidential advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You were recently elected as an A for [name of township] (“Township”), located
in [name of county], Pennsylvania. Prior to your election, you served as the F of the C
from [year] to [year]. During your candidacy, you resigned from all boards and
committees of the C. You are currently a B of the C, in which capacity you are entitled
to G.
Additionally, as a Township A, you currently serve as the H, covering various
services including those provided by the C.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any prohibitions or restrictions upon you with regard to
participating in discussions or votes by the Township Board of As pertaining to a
potential D or the Township’s financing of an E for the C.
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 A, 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.
Confidential Advice, 12-538
May 11, 2012
Page 2
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 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
Confidential Advice, 12-538
May 11, 2012
Page 3
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.
"Financial interest."
Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
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.
Based upon the submitted fact that your current role with the C is limited to that
of a B, you are advised that the C is not a business with which you are associated within
the meaning of that term as defined by the Ethics Act. Since the C is not a business
with which you are associated, you are advised that you would not have a conflict of
interest under Section 1103(a) of the Ethics Act in matter(s) that would financially
impact the C 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 participating in discussion(s) or vote(s) by the Township
Board of As pertaining to a potential D or the Township’s financing of an E for the C.
In light of the above, it is not necessary to determine whether the C would be
considered a “business” as that term is defined in the Ethics Act.
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
Confidential Advice, 12-538
May 11, 2012
Page 4
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 I Class Township Code.
Conclusion:
As an A for [name of township] (“Township”), located in [name of
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) prior to your recent election as a Township A, you served as
the F of the C from [year] to [year]; (2) during your candidacy, you resigned from all
boards and committees of the C; and (3) you are currently a B of the C, in which
capacity you are entitled to G, you are advised that the C is not a business with which
you are associated within the meaning of that term as defined by the Ethics Act. Since
the C is not a business with which you are associated, you are advised that you would
not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) that
would financially impact the C 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 participating in discussion(s) or vote(s) by the
Township Board of As pertaining to a potential D or the Township’s financing of an E for
the C. 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