HomeMy WebLinkAbout12-577 Quick
ADVICE OF COUNSEL
November 20, 2012
Don Quick
P.O. Box Q
Milford, PA 18337
12-577
Dear Mr. Quick:
This responds to your letter dated September 25, 2012 (postmarked September
26, 2012, and received October 2, 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 chairman of a township board of supervisors, who in a private capacity has a
contract with the Pennsylvania Department of Transportation (“PennDOT”) to provide
tree removal services, with regard to participating in or voting on matter(s) before the
township board of supervisors that would involve PennDOT.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts which may be fairly summarized as follows.
You are a Member and Chairman of the Board of Supervisors of Milford
Township (“Township”), located in Pike County, Pennsylvania.
In a private capacity, you own a metal working business which usually purchases
a used piece of construction equipment each fall to fix during slow times in the winter.
In December 2011, you purchased a tracked, 20-ton tree processor.
In June 2012, a retired employee of PennDOT told you that PennDOT was
looking for a tree processing machine with an operator to rent in Pike County on an
hourly basis. You state that you filed the necessary paperwork to become a vendor and
that you were ultimately awarded a contract with PennDOT by public bid. You state that
your services require a three-day notice from PennDOT and that no work has been
performed to date.
The Township has occasional correspondence with PennDOT, and projects
requiring PennDOT Highway Occupancy permits come before the Township Board of
Supervisors. The Township plows two sections of PennDOT roads, for which the
Township receives less than $5,000.00, but the Township’s maintenance responsibility
for those roads does not involve any tree removal work.
Quick, 12-577
November 20, 2012
Page 2
Based upon the above submitted facts, you seek guidance as to whether you
would have a conflict of interest in matter(s) before the Township Board of Supervisors
that would involve PennDOT. You state that in the unlikely event the Township would
request work from PennDOT which would require your services, you would abstain from
any vote requesting such work from PennDOT.
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 and 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).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
Quick, 12-577
November 20, 2012
Page 3
§ 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.
The Pennsylvania Supreme Court has held that in order to violate Section
1103(a) of the Ethics Act, a public official/public employee “must be consciously aware
of a private pecuniary benefit for himself, his family, or his business, and then must take
action in the form of one or more specific steps to attain that benefit.” Kistler v. State
Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011).
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 facts that you have
submitted, you are advised as follows.
A conflict of interest under Section 1103(a) of the Ethics Act may be based upon
an ongoing business relationship (Kitner, Order 1542; Burchfield, Order 1492; Johnson,
Order 1338; Confidential Opinion, 06-001; Kannebecker, Opinion 92-010; Miller,
Opinion 89-024), or a reasonable and legitimate expectation that a business relationship
will form (Gerhard, Order 1460; Mann, Opinion 07-005; Moore, Opinion 04-004;
Confidential Opinion, 00-006; Amato, Opinion 89-002).
You have an ongoing business relationship with PennDOT. Therefore, you are
advised that you would have a conflict of interest and would transgress Section 1103(a)
of the Ethics Act by participating in your official capacity in matter(s) before the
Quick, 12-577
November 20, 2012
Page 4
Township Board of Supervisors involving PennDOT to the extent that: (1) you would be
consciously aware of a private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; and (2) your action would constitute one or more specific steps to attain that
benefit (Kistler, supra).
In each instance of a conflict of interest, you 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.
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 Chairman of the Board of Supervisors of Milford
Township (“Township”), located in Pike 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) in a private capacity,
you own a metal working business which usually purchases a used piece of
construction equipment each fall to fix during slow times in the winter; (2) in December
2011, you purchased a tracked, 20-ton tree processor; (3) in June 2012, a retired
employee of the Pennsylvania Department of Transportation (“PennDOT”) told you that
PennDOT was looking for a tree processing machine with an operator to rent in Pike
County on an hourly basis; (4) you filed the necessary paperwork to become a vendor,
and you were ultimately awarded a contract with PennDOT by public bid; (5) your
services require a three-day notice from PennDOT, and no work has been performed to
date; (6) the Township has occasional correspondence with PennDOT, and projects
requiring PennDOT Highway Occupancy permits come before the Township Board of
Supervisors; and (7) the Township plows two sections of PennDOT roads, for which the
Township receives less than $5,000.00, but the Township’s maintenance responsibility
for those roads does not involve any tree removal work, you are advised as follows.
You would have a conflict of interest and would transgress Section 1103(a) of the
Ethics Act by participating in your official capacity in matter(s) before the Township
Board of Supervisors involving PennDOT to the extent that: (1) you would be
consciously aware of a private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; and (2) your action would constitute one or more specific steps to attain that
benefit. In each instance of a conflict of interest, you 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. 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
.
Quick, 12-577
November 20, 2012
Page 5
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