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HomeMy WebLinkAbout12-544 Mullin ADVICE OF COUNSEL June 6, 2012 Paul G. Mullin, Esquire Hamburg, Rubin, Mullin, Maxwell & Lupin, PC ACTS Center-Blue Bell 375 Morris Road Post Office Box 1479 Lansdale, PA 19446-0773 12-544 Dear Mr. Mullin: This responds to your letter of April 24, 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 borough council member with regard to voting on budgetary matters pertaining to a volunteer fire company which is designated as the emergency fire response company within the borough and of which the borough council member is a trustee and vice president. Facts: You request an advisory from the Pennsylvania State Ethics Commission on behalf of David Frankenfield (“Mr. Frankenfield”), who is a Member of Council for the Borough of West Conshohocken (“Borough”). You have submitted facts that may be fairly summarized as follows. Mr. Frankenfield is a Trustee and Vice President of the George Clay Fire Company (“Fire Company”), which is a non-profit, volunteer fire company. As part of the governing group of the Fire Company, Mr. Frankenfield is responsible for determining the policies and procedures of the Fire Company and the allocation of the Fire Company’s budget and funds. You state that the governing body, which Mr. Frankenfield is a member of, basically handles the entire operations of the Fire Company. You state that Mr. Frankenfield derives no defined salary from his positions with the Fire Company. You further state that Mr. Frankenfield is occasionally requested to perform certain functions for the Fire Company, including driving, which result in a financial benefit to him and that to date, such benefits have not exceeded $1,000 in any given year. The Fire Company is designated as the emergency fire response company within the Borough, and the Fire Company’s obligations include, inter alia, emergency fire responses, vehicle fires, and water rescues. For the services received from the Fire Company, Borough Council adopts, as part of the Borough’s annual budget, an annual Mullin, 12-544 June 6, 2012 Page 2 expense to assist the Fire Company with its operations. The Fire Company’s budget is comprised almost exclusively of the funds allocated to the Fire Company in the Borough’s annual budget. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would permit Mr. Frankenfield to vote on budgetary matters pertaining to the Fire Company. 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 Member of Borough Council, Mr. Frankenfield 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 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). Mullin, 12-544 June 6, 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. "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. Pursuant to Section 1103(a) of the Ethics Act, a public official is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary benefit of the public official 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 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 specific question, the threshold issue is whether the Fire Company would be considered a part of the Borough or a private entity separate from the Borough. Mullin, 12-544 June 6, 2012 Page 4 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. In the instant matter, the submitted facts are insufficient to enable a conclusive determination as to whether the Fire Company would be considered a private entity and would not be considered a part of the Borough. Although the submitted facts indicate the degree to which the Fire Company is funded by the Borough, the submitted facts do not indicate whether the Borough exercises control over the Fire Company, such as, for example, by appointing or approving the appointment of members of the Fire Company’s governing body. Therefore, you are generally advised as follows. To the extent that the Fire Company would be considered a private entity and would not be considered a part of the Borough, the Fire Company would be a “business” as that term is defined by the Ethics Act, and the Fire Company would be a business with which Mr. Frankenfield is associated in his capacities as a Trustee and Vice President. Accordingly, under such circumstances, Mr. Frankenfield would have a conflict of interest under Section 1103(a) of the Ethics Act in budgetary matter(s) before Borough Council that would involve the Fire Company. In each instance of a conflict of interest, Mr. Frankenfield 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. To the extent that the Fire Company would not be considered a private entity and would be considered a part of the Borough, absent a basis for a conflict of interest such as a private pecuniary benefit to Mr. Frankenfield, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Frankenfield would not have a conflict of interest under Section 1103(a) of the Ethics Act in budgetary matter(s) before Borough Council that would involve the Fire Company. 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 Borough Code. Conclusion: As a Member of Council for the Borough of West Conshohocken (“Borough”), David Frankenfield (“Mr. Frankenfield”) 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. The submitted facts are insufficient to enable a conclusive determination as to whether the George Clay Fire Company (“Fire Company”)--which is designated as the emergency fire response company within the Borough and of which Mr. Frankenfield is a Trustee and Vice President--would be considered a private entity and would not be considered a part of the Borough. Therefore, you are generally advised as follows. To the extent that the Fire Company would be considered a private entity and would not be considered a part of the Borough, the Fire Company would be a “business” as that term is defined by the Ethics Act, and the Fire Company would be a business with which Mr. Frankenfield is associated in his capacities as a Trustee and Vice President. Accordingly, under such circumstances, Mr. Frankenfield would have a conflict of interest under Section 1103(a) of the Ethics Act in budgetary matter(s) before Borough Council that would involve the Fire Company. In each instance of a conflict of interest, Mr. Frankenfield would be required to abstain from participation, which would Mullin, 12-544 June 6, 2012 Page 5 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. To the extent that the Fire Company would not be considered a private entity and would be considered a part of the Borough, absent a basis for a conflict of interest such as a private pecuniary benefit to Mr. Frankenfield, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Frankenfield would not have a conflict of interest under Section 1103(a) of the Ethics Act in budgetary matter(s) before Borough Council that would involve the Fire Company. 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