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HomeMy WebLinkAbout13-585 Skypala ADVICE OF COUNSEL December 19, 2013 Edward A. Skypala 224 King Street Pottstown, PA 19464-5597 13-585 Dear Mr. Skypala: This responds to your letter of November 15, 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 prohibitions or restrictions upon a township supervisor with regard to voting on the township’s proposed 2014 budget, where: (1) the township supervisor’s wife is employed as the head of the township recreation department; and (2) the township’s proposed 2014 budget contains a $10,000 salary increase for the township supervisor’s wife in order to bring her salary in line with the salaries of other comparable township department heads. Facts: As Solicitor for Upper Providence Township, located in Montgomery County, Pennsylvania, you have been authorized by Township Supervisor Philip Barker (“Mr. Barker”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Township Board of Supervisors (“Board of Supervisors”) consists of three Members. The salary of the Township Chief of Police is established by employment contract, and the Board of Supervisors establishes the salaries for all other Township department heads (hereinafter referred to as the “Department Heads”) in the annual Township budget. Each Department Head is a full-time Township employee. Mr. Barker’s wife, Susan Barker (“Mrs. Barker”), is employed as the Township Recreation Director, in which capacity she is the head of the Township Recreation Department. The Township’s proposed 2014 budget (the “2014 Budget”) contains a two-percent salary increase for each Department Head. The 2014 Budget additionally contains a $631 salary increase for the Finance Director for exemplary service and a $10,000 salary increase for Mrs. Barker in order to bring her salary in line with the salaries of other comparable Department Heads. Under the 2014 Budget, Mrs. Barker’s salary would be set at $84,866. Based upon the above submitted facts, you ask whether Mr. Barker would have a conflict of interest with regard to voting on the 2014 Budget, and if so, whether Section Skypala, 13-585 December 19, 2013 Page 2 1103(j) of the Ethics Act would permit Mr. Barker to vote to break a tie where the other two Township Supervisors would cast opposing votes on the 2014 Budget. 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, Mr. Barker is 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 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 Skypala, 13-585 December 19, 2013 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. 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. It is noted that the above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein as the "de minimis exclusion" and the "class/subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly Skypala, 13-585 December 19, 2013 Page 4 situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In applying the above provisions of the Ethics Act to the submitted facts, you are advised as follows. Mr. Barker’s wife is a member of his “immediate family” as that term is defined in the Ethics Act. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Barker would have a conflict of interest in his capacity as a Township Supervisor in matters that would financially impact him or his wife. Mr. Barker would specifically have a conflict of interest with regard to the 2014 Budget because the 2014 Budget establishes Mrs. Barker’s salary as the Township Recreation Director/a Department Head. The class/subclass exclusion would not be applicable because, based upon the submitted facts, Mrs. Barker would be the only Department Head to receive a $10,000 salary increase under the 2014 Budget, and therefore, she would not be affected to the same degree by the 2014 Budget as would other Department Head(s). Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mr. Barker would be required to abstain fully from participation in each instance of a conflict of interest. Because the Board of Supervisors is a three-member board, Section 1103(j) of the Ethics Act would permit Mr. Barker to vote to break a tie if the other two Township Supervisors would cast opposing votes on the 2014 Budget, provided that Mr. Barker would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. However, Mr. Barker could not otherwise use the authority of office, such as by advocating his view, in the matter. 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 Upper Providence Township (“Township”), located in Montgomery County, Pennsylvania, Philip Barker (“Mr. Barker”) 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 submitted facts that: (1) the Township Board of Supervisors (“Board of Supervisors”) consists of three Members; (2) the salary of the Township Chief of Police is established by employment contract, and the Board of Supervisors establishes the salaries for all other Township department heads (hereinafter referred to as the “Department Heads”) in the annual Township budget; (3) each Department Head is a full-time Township employee; (4) Mr. Barker’s wife, Susan Barker (“Mrs. Barker”), is employed as the Township Recreation Director, in which capacity she is the head of the Township Recreation Department; (5) the Township’s proposed 2014 budget (the “2014 Budget”) contains a two-percent salary increase for each Department Head; (6) the 2014 Budget additionally contains a $631 salary increase for the Finance Director for exemplary service and a $10,000 salary increase for Mrs. Barker in order to bring her salary in line with the salaries of other comparable Department Heads; and (7) under the 2014 Budget, Mrs. Barker’s salary would be set at $84,866, you are advised as follows. Mr. Barker’s wife is a member of his “immediate family” as that term is defined in the Ethics Act. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Barker would have a conflict of interest in his Skypala, 13-585 December 19, 2013 Page 5 capacity as a Township Supervisor in matters that would financially impact him or his wife. Mr. Barker would specifically have a conflict of interest with regard to the 2014 Budget because the 2014 Budget establishes Mrs. Barker’s salary as the Township Recreation Director/a Department Head. The class/subclass exclusion would not be applicable because, based upon the submitted facts, Mrs. Barker would be the only Department Head to receive a $10,000 salary increase under the 2014 Budget, and therefore, she would not be affected to the same degree by the 2014 Budget as would other Department Head(s). Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mr. Barker would be required to abstain fully from participation in each instance of a conflict of interest. Because the Board of Supervisors is a three-member board, Section 1103(j) of the Ethics Act would permit Mr. Barker to vote to break a tie if the other two Township Supervisors would cast opposing votes on the 2014 Budget, provided that Mr. Barker would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. However, Mr. Barker could not otherwise use the authority of office, such as by advocating his view, in the matter. 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