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Home My WebLink About13-559 Wilmot ADVICE OF COUNSEL August 14, 2013 Jack Wilmot, Chairman Board of Supervisors Kiskiminetas Township 1222A Old State Road Apollo, PA 15613 13-559 Dear Mr. Wilmot: This responds to your letter dated June, 7, 2013, in conjunction with the letter of Kiskiminetas Township Secretary Monica L. Austin dated July 11, 2013 (received July 16, 2013), requesting an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), an individual employed with a township’s road department would be permitted to continue serving in his current employment position with the township if the individual would be elected as a supervisor for the township. Facts: As Chairman of the Board of Supervisors (“Board”) of Kiskiminetas Township (“Township”), located in Armstrong County, Pennsylvania, you have been authorized by the Board to request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. Ronald Baker (“Mr. Baker”) is a Township employee, and he is a member of the bargaining unit (“Bargaining Unit”) that represents Township road department employees. A copy of the Township road employees’ July 14, 2010, union contract (“Contract”), has been submitted, which indicates that the Bargaining Unit represents “all road department employees, but excluding management level employees, supervisors, first level employees, confidential employees and guards . . . .” Contract, Article I, paragraph 1. Mr. Baker is running unopposed in the 2013 general election as a candidate for the office of Township Supervisor. You state that Mr. Baker has indicated to the Board that if elected, he plans to remain a member of the Bargaining Unit while serving as a Township Supervisor. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would permit Mr. Baker to continue serving in his current employment position with the Township if he would be elected as a Township Supervisor. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Wilmot, 13-559 August 14, 2013 Page 2 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. Preliminarily, it is noted that the submitted facts do not specifically identify Mr. Baker’s current employment position with the Township or include an official position description for that position (which position shall hereinafter also be referred to as the “Current Employment Position”). Therefore, the submitted facts are insufficient to enable a conclusive determination as to whether Mr. Baker is a public employee subject to the Ethics Act in the Current Employment Position with the Township. However, if Mr. Baker would be elected as a Township Supervisor, upon assuming said position, he would in that capacity be 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 pertaining to conflicts of interest under the Ethics Act are defined as follows: Wilmot, 13-559 August 14, 2013 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In applying the above provisions of the Ethics Act to your inquiry, it is initially noted that this advisory is limited to addressing the question of simultaneous service from the perspective of the Ethics Act. The State Ethics Commission does not have the express statutory jurisdiction to interpret the Second Class Township Code. Questions of simultaneous service are reviewed under the Ethics Act based upon whether: (1) there is a statutorily-declared incompatibility precluding simultaneous service in the positions in question; or (2) simultaneous service would result in an inherent conflict under Section 1103(a) of the Ethics Act. With regard to statutorily-declared incompatibility, the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The State Ethics Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. Wilmot, 13-559 August 14, 2013 Page 4 It is clear from the face of the following provisions of the Second Class Township Code that a Township Supervisor is not prohibited from simultaneously serving in any Township employee position where such is not otherwise prohibited by law: § 65403. Supervisors ... (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 (P.L. 805, No. 247), known as the “Pennsylvania Municipalities Planning Code.” … 53 P.S. § 65403(b). § 65602. Organization meeting; appointment of secretary and treasurer … (c) The board of supervisors may appoint a supervisor to be employed as roadmaster, laborer, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act. … 53 P.S. § 65602(c). With regard to inherent conflicts, you are advised that an inherent conflict would exist where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a). The submitted facts do not specifically identify the Current Employment Position. However, given the submitted fact that the Bargaining Unit represents “all road department employees, but excluding management level employees, supervisors, first level employees, confidential employees and guards” (Contract, Article I, paragraph 1), this Advice assumes that the Current Employment Position is a road worker position and that there is no statutorily-declared incompatibility or inherent conflict as to simultaneous service in the positions in question. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. Therefore, based upon the submitted facts, you are advised that Section 1103(a) of the Ethics Act would not prohibit Mr. Baker from continuing to serve in the Current Employment Position with the Township if he would be elected as a Township Supervisor. (Cf., Yeropoli, Advice 11-529; Perrotta, Advice 08-582). Wilmot, 13-559 August 14, 2013 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) Ronald Baker (“Mr. Baker”) is an employee of Kiskiminetas Township (“Township”), located in Armstrong County, Pennsylvania; (2) Mr. Baker is a member of the bargaining unit (“Bargaining Unit”) that represents all Township road department employees, excluding management level employees, supervisors, first level employees, confidential employees and guards; (3) Mr. Baker is running unopposed in the 2013 general election as a candidate for the office of Township Supervisor; and (4) Mr. Baker has indicated to the Township Board of Supervisors that if elected, he plans to remain a member of the Bargaining Unit while serving as a Township Supervisor, you are advised as follows. If Mr. Baker would be elected as a Township Supervisor, upon assuming said position, he would in that capacity be 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 do not specifically identify Mr. Baker’s current employment position (“Current Employment Position”) with the Township. However, given the submitted fact that the Bargaining Unit represents all road department employees, excluding management level employees, supervisors, first level employees, confidential employees and guards, this Advice assumes that the Current Employment Position is a road worker position and that there is no statutorily-declared incompatibility or inherent conflict under Section 1103(a) of the Ethics Act as to simultaneous service in the positions in question. Therefore, Section 1103(a) of the Ethics Act would not prohibit Mr. Baker from continuing to serve in the Current Employment Position with the Township if he would be elected as a Township Supervisor. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, this 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