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HomeMy WebLinkAbout13-507 Jarvis ADVICE OF COUNSEL February 21, 2013 Alan J. Jarvis, Esquire Highlands Corporate Center 495 Highlands Boulevard, Suite 109 Coatesville, PA 19320 13-507 Dear Mr. Jarvis: This responds to your letters dated November 26, 2012, and December 19, 2012, and your faxed transmission received December 31, 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 chairperson of a township board of supervisors with regard to participating at her own expense in the township’s group insurance plans. Facts: As Solicitor for Valley Township (“Township”), located in Chester County, Pennsylvania, you have been authorized by Patrice L. Proctor (“Ms. Proctor”), who is a Member and Chairperson of the Township Board of Supervisors, to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. The Township Board of Supervisors is considering a policy that would allow its Members to participate at their own expense in the Township’s group insurance plans, including health, hospitalization and medical insurance and possibly life insurance. You state that no Township Supervisor is presently participating in the Township’s group insurance plans. You further state that the proposed participation would be immediate and prior to a Township Supervisor having to stand for re-election. You seek guidance as to whether the Ethics Act would permit Ms. Proctor to participate at her own expense in the Township’s group insurance plans. 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 Jarvis, 13-507 February 21, 2013 Page 2 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 Chairperson of the Township Board of Supervisors, Ms. Proctor is a public official as that term is defined in the Ethics Act, and therefore she 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). The following terms 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 Jarvis, 13-507 February 21, 2013 Page 3 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. 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 addressing the particular question that you have posed under the Ethics Act, this Advice does not address Section 65606(c)(1) of the Second Class Township Code, pertaining to the participation of supervisors and their dependents in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. You are advised that generally, Section 1103(a) of the Ethics Act does not prohibit a public official from participating at his or her own expense in the same group health care insurance coverage provided through the governmental body to other eligible participants, as long as the public official does not use the authority of his or her public office to obtain such coverage, such as, for example, by taking action to advance, authorize, or approve his or her own participation. See, Domalakes, Opinion 85-010; Keiter, Opinion 90-004; Dawson, Opinion 97-003; Chamberlain, Advice 04-605; cf., Confidential Advice, 04-569. Therefore, you are advised that subject to the conditions that Ms. Proctor: (1) would be participating in the same group insurance plans provided by the Township to other eligible participants; and (2) would fully abstain from the matter and not use the authority of her public office as a Member and Chairperson of the Township Board of Supervisors to advance or obtain her participation in the group insurance plans provided by the Township, Section 1103(a) of the Ethics Act would not prohibit Ms. Proctor from participating at her own expense in the Township’s group insurance plans. 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. Conclusion: As a Member and Chairperson of the Board of Supervisors of Valley Township (“Township”), located in Chester County, Pennsylvania, Patrice L. Proctor (“Ms. Proctor”) 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. Based upon the Jarvis, 13-507 February 21, 2013 Page 4 submitted facts that: (1) the Township Board of Supervisors is considering a policy that would allow its Members to participate at their own expense in the Township’s group insurance plans, including health, hospitalization and medical insurance and possibly life insurance; (2) no Township Supervisor is presently participating in the Township’s group insurance plans; and (3) the proposed participation would be immediate and prior to a Township Supervisor having to stand for re-election, you are advised as follows. Subject to the conditions that Ms. Proctor: (1) would be participating in the same group insurance plans provided by the Township to other eligible participants; and (2) would fully abstain from the matter and not use the authority of her public office as a Member and Chairperson of the Township Board of Supervisors to advance or obtain her participation in the group insurance plans provided by the Township, Section 1103(a) of the Ethics Act would not prohibit Ms. Proctor from participating at her own expense in the Township’s group insurance plans. 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