HomeMy WebLinkAbout14-501 Shirk
ADVICE OF COUNSEL
January 27, 2014
Kenelm L. Shirk, III, Esquire
Shirk & Mejia, LLP
115 South State Street
Ephrata, PA 17522-2412
14-501
Dear Mr. Shirk:
This responds to your letter dated November 25, 2013 (postmarked November
29, 2013, and received December 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 prohibitions or restrictions upon a township
supervisor with regard to participating in discussions or votes by the township board of
supervisors pertaining to a project that would involving paving and/or making other
improvements to the gravel portion of a road, where the township supervisor’s son owns
one of three residential homes located along such gravel portion.
Facts:
As Solicitor for the Township of Bart (“Township”), you have been
authorized by Township Supervisor F. Edward Weidman (“Mr. Weidman”) to request an
advisory from the Pennsylvania State Ethics Commission on his behalf. You have
submitted facts which may be fairly summarized as follows.
The Township is governed by a three-Member Board of Supervisors (“Board of
Supervisors”). The Township currently provides road maintenance for a road named
“Heyberger Road.” Heyberger Road includes a gravel portion, which is hereinafter
referred to as “the Gravel Road.” There are three residential homes located along the
Gravel Road, one of which is owned by Mr. Weidman’s son. The Gravel Road is
accessible to the public at large, and Mr. Weidman, who lives approximately 1.5 miles
from the beginning of the Gravel Road, uses the Gravel Road.
The Township is considering a project that would involve paving the Gravel Road
and/or making other improvements to the Gravel Road (“the Gravel Road Project”). The
length of the proposed paving is less than 500 feet, and the estimated cost for such
paving is approximately $21,000.00. You state that under the Second Class Township
Code, the Board of Supervisors would need to decide whether the improvements to the
Gravel Road would be assessed against the owners of the three residential homes
located along the Gravel Road.
Shirk, 14-501
January 27, 2014
Page 2
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit Mr. Weidman to participate in
discussion(s) and/or vote(s) by the Board of Supervisors on the Gravel
Road Project, including the financing of the Gravel Road Project; and
(2) If Mr. Weidman would have a conflict of interest with regard to voting on
the Gravel Road Project, whether he would be permitted to vote to break a
tie if the other two Township Supervisors would cast opposing votes.
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. Weidman 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 are defined in the Ethics Act as follows:
Shirk, 14-501
January 27, 2014
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.
"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
Shirk, 14-501
January 27, 2014
Page 4
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
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 instant matter, you are
advised as follows. Mr. Weidman’s son is a member of his “immediate family” as that
term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr.
Weidman generally would have a conflict of interest in matters before the Board of
Supervisors that would financially impact him, a member of his immediate family such
as his son, or a business with which Mr. Weidman or a member of his immediate family
is associated.
In response to your specific questions, you are advised as follows.
Based upon the submitted fact that Mr. Weidman’s son owns one of the three
residential homes located along the Gravel Road, Mr. Weidman would have a conflict of
interest under Section 1103(a) of the Ethics Act in discussion(s) and/or vote(s)
pertaining to the Gravel Road Project unless the class/subclass exclusion would be
applicable.
In the instant matter, the submitted facts do not enable a conclusive
determination as to whether Mr. Weidman’s son would be a member of an appropriate
subclass or whether Mr. Weidman’s son would be affected by the improvements made
by the Gravel Road Project "to the same degree" as other members of such a subclass.
Accordingly, you are generally advised that in order for the class/subclass exclusion to
apply, there would have to be at least one other owner of real estate along the portion of
the Gravel Road to be improved by the Gravel Road Project: (1) who would be similarly
situated to Mr. Weidman’s son as the result of relevant shared characteristics, so as to
qualify with Mr. Weidman’s son as a member of a subclass; and (2) who would be
reasonably affected to the same degree as Mr. Weidman’s son would be affected by Mr.
Weidman’s action as to such matter. Kablack, supra.
Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mr.
Weidman would be required to abstain fully from participation in each instance of a
conflict of interest. The exception for breaking a tie vote despite a conflict is available
exclusively to members of three-member governing bodies who first abstain and
disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, Garner,
Opinion 93-004; Pavlovic, Opinion 02-005. Because the Board of Supervisors consists
of three Members, Section 1103(j) would permit Mr. Weidman to vote to break a tie if
the other two Township Supervisors would cast opposing votes on the Gravel Road
Project, provided that Mr. Weidman would initially: (1) abstain from the vote; and (2)
fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. However,
in voting to break a tie vote, Mr. Weidman 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 or the Rule of Necessity.
Shirk, 14-501
January 27, 2014
Page 5
Conclusion:
As a Supervisor for the Township of Bart (“Township”), F. Edward
Weidman (“Mr. Weidman”) 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 is governed by a three-Member Board of
Supervisors (“Board of Supervisors”); (2) The Township currently provides road
maintenance for a road named “Heyberger Road”; (3) Heyberger Road includes a
gravel portion, which is hereinafter referred to as “the Gravel Road”; (4) there are three
residential homes located along the Gravel Road, one of which is owned by Mr.
Weidman’s son; (5) the Gravel Road is accessible to the public at large, and Mr.
Weidman, who lives approximately 1.5 miles from the beginning of the Gravel Road,
uses the Gravel Road; (6) the Township is considering a project that would involve
paving the Gravel Road and/or making other improvements to the Gravel Road (“the
Gravel Road Project”); (7) the length of the proposed paving is less than 500 feet, and
the estimated cost for such paving is approximately $21,000.00; and (8) under the
Second Class Township Code, the Board of Supervisors would need to decide whether
the improvements to the Gravel Road would be assessed against the owners of the
three residential homes located along the Gravel Road, you are advised as follows.
Mr. Weidman’s son is a member of his “immediate family” as that term is defined
in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr. Weidman generally
would have a conflict of interest in matters before the Board of Supervisors that would
financially impact him, a member of his immediate family such as his son, or a business
with which Mr. Weidman or a member of his immediate family is associated. Based
upon the submitted fact that Mr. Weidman’s son owns one of the three residential
homes located along the Gravel Road, Mr. Weidman would have a conflict of interest
under Section 1103(a) of the Ethics Act in discussion(s) and/or vote(s) pertaining to the
Gravel Road Project unless the class/subclass exclusion would be applicable.
The submitted facts do not enable a conclusive determination as to whether Mr.
Weidman’s son would be a member of an appropriate subclass or whether Mr.
Weidman’s son would be affected by the improvements made by the Gravel Road
Project "to the same degree" as other members of such a subclass. In order for the
class/subclass exclusion to apply, there would have to be at least one other owner of
real estate along the portion of Gravel Road to be improved by the Gravel Road Project:
(1) who would be similarly situated to Mr. Weidman’s son as the result of relevant
shared characteristics, so as to qualify with Mr. Weidman’s son as a member of a
subclass; and (2) who would be reasonably affected to the same degree as Mr.
Weidman’s son would be affected by Mr. Weidman’s action as to such matter. Subject
to the voting conflict exceptions of Section 1103(j) of the Ethics Act, Mr. Weidman 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. Weidman to vote to break a tie if the other two Township
Supervisors would cast opposing votes on the Gravel Road Project, provided that Mr.
Weidman would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. However, in voting to break a tie
vote, Mr. Weidman 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
.
Shirk, 14-501
January 27, 2014
Page 6
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