HomeMy WebLinkAbout13-536 Ward
ADVICE OF COUNSEL
May 23, 2013
Lawrence B. Ward
64 Bishop Drive
Aston, PA 19014
13-536
Dear Mr. Ward:
This responds to your letter of April 3, 2013, 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 matters that would financially impact a
volunteer fire company of which the borough council member is deputy chief and
treasurer.
Facts:
As a Member of Council for Chester Heights Borough (“Borough”), you
request an advisory from the Pennsylvania State Ethics Commission based upon
submitted facts that may be fairly summarized as follows.
You are Deputy Chief and Treasurer of Chester Heights Fire Company No. 1
(“Fire Company”). The Fire Company is a separate non-profit 501(c)(3) corporation with
its own by-laws. You state that each position at the Fire Company is elected from the
active membership on a yearly basis. You further state that you do not receive any
remuneration from the Fire Company for serving in the positions of Deputy Chief and
Treasurer, as the Fire Company is completely volunteer.
You state that there are items that Borough Council will or could be voting on
which relate to expenditures to the Fire Company regarding possible professional fees
and other fee items for the construction of a new firehouse.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit you to vote on matters that would financially impact the Fire
Company.
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
Ward, 13-536
May 23, 2013
Page 2
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 Borough Council Member, you are a public official 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
Ward, 13-536
May 23, 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.
"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.
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.
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. Therefore, you are generally advised as
follows.
The Ethics Act’s definition of the term “business” includes non-profit corporations.
Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 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 you
Ward, 13-536
May 23, 2013
Page 4
are associated in your capacities as Deputy Chief and Treasurer. Accordingly, under
such circumstances, you would have a conflict of interest under Section 1103(a) of the
Ethics Act in matter(s) before Borough Council that would financially impact the Fire
Company. 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.
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 you, a member of your immediate family, or a business
with which you or a member of your immediate family is associated, you would not have
a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough
Council that would financially impact 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 Chester Heights Borough (“Borough”),
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. The submitted facts are insufficient
to enable a conclusive determination as to whether Chester Heights Fire Company No.
1 (“Fire Company”), of which you are Deputy Chief and Treasurer, would be considered
a private entity and would not be considered a part of the Borough. Therefore, you are
generally advised as follows.
The Ethics Act’s definition of the term “business” includes non-profit corporations.
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
you are associated in your capacities as Deputy Chief and Treasurer. Accordingly,
under such circumstances, you would have a conflict of interest under Section 1103(a)
of the Ethics Act in matter(s) before Borough Council that would financially impact the
Fire Company. 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.
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 you, a member of your immediate family, or a business
with which you or a member of your immediate family is associated, you would not have
a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before Borough
Council that would financially impact 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.
Ward, 13-536
May 23, 2013
Page 5
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