HomeMy WebLinkAbout12-559 Martyak
ADVICE OF COUNSEL
August 21, 2012
Daniel J. Martyak
752 Mohican Drive
Easton, PA 18040
12-559
Dear Mr. Martyak:
This responds to your undated letter received July 23, 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 with regard to participating in the annual township budget process, including
voting on a township budget that would provide an allocation for the township recreation
board, where: (1) the township recreation board oversees all recreation funds, including
those for youth sports and other programs; (2) a non-profit athletic association runs the
youth sports programs in the township; and (3) the township supervisor has resigned
from serving, in a private capacity, as an active member and president of the athletic
association.
Facts:
As a Supervisor for Forks Township (“Township”), located in Northampton
County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You took office as a Township Supervisor effective January 3, 2012. For
approximately four years before you became a Township Supervisor, you were
President of the Forks Township Athletic Association (“Athletic Association”). You state
that you stopped serving as President of the Athletic Association on December 31,
2011, prior to taking office as a Township Supervisor. You have also resigned from
being an active member of the Athletic Association, which is defined as paying $2 per
year and attending approximately six meetings.
The Athletic Association is a non-profit group that runs the youth sports programs
in the Township. The Athletic Association organizes teams, creates schedules, and
does other things, including coaching background checks and fund raising, for the
Township youth sports programs. Pursuant to a contract with the Township, the
Athletic Association pays the Township $15,000 annually for use of the fields and snack
bars.
Martyak, 12-559
August 21, 2012
Page 2
The Township Recreation Board oversees all recreation funds, including those
for youth sports and other programs. The Township annually budgets approximately
$95,000 for the Township Recreation Board for items like uniforms, league fees, umpire
fees and equipment. You state that all such budgeted funds are managed by the
Township Recreation Board and the Township Recreation Director. You further state
that no money is ever directly given to the Athletic Association by the Township.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would be permitted to continue to volunteer as a coach and
in other ways for the Athletic Association; and
(2) Whether you would be permitted to participate in the annual Township
budget process, including voting on a Township budget that would provide
an allocation for the Township Recreation Board.
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 Supervisor, 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
Martyak, 12-559
August 21, 2012
Page 3
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.
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.
Martyak, 12-559
August 21, 2012
Page 4
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first question, you are advised that the Ethics Act would not
prohibit you, in your private capacity, from continuing to volunteer as a coach and in
other ways for the Athletic Association.
With regard to your second question, you are advised that there is no basis in the
submitted facts to conclude that the Athletic Association is a business with which you
are associated as the Ethics Act defines that term. Therefore, under the submitted
facts, you are advised that absent a 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 the annual Township budget process,
including voting on a Township budget that would provide an allocation for the Township
Recreation Board.
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 Supervisor for Forks Township (“Township”), located in
Northampton 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) you took office as a Township Supervisor
effective January 3, 2012; (2) for approximately four years before you became a
Township Supervisor, you were President of the Forks Township Athletic Association
(“Athletic Association”); (3) you stopped serving as President of the Athletic Association
on December 31, 2011, prior to taking office as a Township Supervisor; (4) you have
also resigned from being an active member of the Athletic Association, which is defined
as paying $2 per year and attending approximately six meetings; (5) the Athletic
Association is a non-profit group that runs the youth sports programs in the Township;
(6) the Athletic Association organizes teams, creates schedules, and does other things,
including coaching background checks and fund raising, for the Township youth sports
programs; (7) pursuant to a contract with the Township, the Athletic Association pays
the Township $15,000 annually for use of the fields and snack bars; (8) the Township
Recreation Board oversees all recreation funds, including those for youth sports and
other programs; (9) the Township annually budgets approximately $95,000 for the
Township Recreation Board for items like uniforms, league fees, umpire fees and
equipment; and (10) all such budgeted funds are managed by the Township Recreation
Board and the Township Recreation Director, and no money is ever directly given to the
Athletic Association by the Township, you are advised as follows. The Ethics Act would
not prohibit you, in your private capacity, from continuing to volunteer as a coach and in
other ways for the Athletic Association. There is no basis in the submitted facts to
conclude that the Athletic Association is a business with which you are associated as
the Ethics Act defines that term. Therefore, under the submitted facts, you are advised
that absent a 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 the annual Township budget process, including voting on a
Township budget that would provide an allocation for the Township Recreation Board.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Act.
Martyak, 12-559
August 21, 2012
Page 5
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