HomeMy WebLinkAbout14-516 Auslander
ADVICE OF COUNSEL
April 8, 2014
Sam S. Auslander, Esquire
Eckell, Sparks, Levy, Auerbach, Monte,
Sloane, Matthews & Auslander, P.C.
Legal Arts Building
344 W. Front Street
P.O. Box 319
Media, PA 19063
14-516
Dear Mr. Auslander:
This responds to your letters dated January 31, 2014, February 10, 2014, and
February 11, 2014, 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
commissioner, whose fiancée is a candidate for the position of township secretary, with
regard to: (1) participating in discussions or actions involving the selection of an
individual to serve as the township secretary; (2) participating in discussions or votes on
expenditures or disciplinary actions involving the township secretary; or (3) participating
in discussions or votes on the township budget, where the township budget would or in
the alternative would not contain a separate line item for the township secretary’s salary
and benefits.
Facts:
As Solicitor for Tinicum Township (“Township”), located in Delaware
County, Pennsylvania, you have been authorized by Township Commissioner Thomas
J. Giancristoforo (“Mr. Giancristoforo”) to request an advisory from the Pennsylvania
State Ethics Commission on his behalf. You have submitted facts that may be fairly
summarized as follows.
Mr. Giancristoforo is President of the Township Board of Commissioners (“Board
of Commissioners”). There is a vacancy in the position of Township Secretary due to
the recent resignation of the individual who was serving in that position. Under the First
Class Township Code, the Board of Commissioners shall appoint a Township Secretary
who shall not be a Member of the Board of Commissioners. The position of Township
Secretary is not covered by a collective bargaining agreement.
One of the candidates for the position of Township Secretary is the fiancée of Mr.
Giancristoforo. The Board of Commissioners is scheduled to appoint a Township
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April 8, 2014
Page 2
Secretary a few weeks before the marriage ceremony of Mr. Giancristoforo and his
fiancée is scheduled to take place.
Based upon the above submitted facts, you pose the following questions:
(1) Whether Mr. Giancristoforo would be permitted to participate in
discussions and actions of the Board of Commissioners involving the
selection of an individual to serve as the Township Secretary;
(2) Whether the Board of Commissioners would be permitted to appoint Mr.
Giancristoforo’s fiancée as the Township Secretary;
(3) Whether Mr. Giancristoforo would be permitted to initiate, discuss, or vote
on specific expenditures in favor of the Township Secretary, including
pension benefits, health insurance, vacation time, and the like;
(4) Whether Mr. Giancristoforo would be permitted to participate in
discussions and vote on the Township budget, where the Township
budget would or in the alternative would not contain a separate line item
for the Township Secretary’s salary and benefits; and
(5) Whether Mr. Giancristoforo would be permitted to participate in
discussions and vote on a disciplinary action involving the Township
Secretary if such would arise.
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 Commissioner, Mr. Giancristoforo 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
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April 8, 2014
Page 3
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
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.
The Pennsylvania Supreme Court has held that in order to violate Section
1103(a) of the Ethics Act, a public official/public employee “must be consciously aware
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April 8, 2014
Page 4
of a private pecuniary benefit for himself, his family, or his business, and then must take
action in the form of one or more specific steps to attain that benefit.” Kistler v. State
Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Based upon Kistler,
the existence of a violation of Section 1103(a) would depend upon the circumstances in
a given case. Raphael, Opinion 13-003.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
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
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.
Subject to the de minimis exclusion and the class/subclass exclusion, pursuant to
Section 1103(a) of the Ethics Act, Mr. Giancristoforo would have a conflict of interest in
matters before the Board of Commissioners that would financially impact him, a
member of his immediate family, or a business with which he or a member of his
immediate family is associated. Mr. Giancristoforo’s fiancée is not a member of his
“immediate family” as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics
Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d
1211 (1998) (Holding that a relative not encompassed by the family relationships listed
in the Ethics Act’s definition of the term “immediate family”—in that case, a son-in-law—
would not be considered a member of immediate family). Therefore, Mr. Giancristoforo’s
relationship with his fiancée in and of itself would not form the basis of a conflict of
interest for him under the Ethics Act in matters before the Board of Commissioners.
However, when Mr. Giancristoforo’s fiancée would become his spouse, she
would then be considered a member of his “immediate family” as that term is defined in
the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, Mr. Giancristoforo
would generally have a conflict of interest in matters before the Board of Commissioners
that would financially impact him or his spouse.
Having established the above general principles, your specific questions shall
now be considered.
In response to your first question, you are advised that since Mr. Giancristoforo’s
fiancée is not a member of his immediate family, Section 1103(a) of the Ethics Act
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April 8, 2014
Page 5
would not prohibit him from participating in discussions and actions of the Board of
Commissioners involving the selection of an individual to serve in the position of
Township Secretary where his fiancée would be a candidate for the position.
Your second question cannot be addressed in this advisory because the State
Ethics Commission does not have the statutory jurisdiction to provide advisory opinions
regarding the proposed conduct of a governmental body, such as the Board of
Commissioners.
In response to your third, fourth, and fifth questions, you are advised as follows.
If Mr. Giancristoforo’s fiancée would be appointed as the Township Secretary
and would thereafter become his spouse, Mr. Giancristoforo would then have a conflict
of interest and would violate Section 1103(a) of the Ethics Act in his official capacity as
a Township Commissioner by participating in matter(s) involving the Township
Secretary—including but not limited to expenditure(s) for pension benefits, health
insurance, vacation time, and the like or disciplinary action(s)—to the extent that: (1) Mr.
Giancristoforo would be consciously aware of a private pecuniary benefit for his spouse;
(2) his official action would constitute one or more specific steps to attain that benefit;
and (3) neither the de minimis exclusion nor the class/subclass exclusion would be
applicable.
To the extent the Township budget would include funding for the Township
Secretary’s salary and benefits as a separate line item, Mr. Giancristoforo would have a
conflict of interest as to that particular line item. However, if the Township Secretary’s
salary and benefits would not be a separate line item on the Township budget, Mr.
Giancristoforo would have a conflict of interest as to the Township budget in its entirety.
As noted above, in each instance of a conflict of interest, Mr. Giancristoforo
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.
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 First Class Township Code.
Conclusion:
As a Commissioner for Tinicum Township (“Township”), located in
Delaware County, Pennsylvania, Thomas J. Giancristoforo (“Mr. Giancristoforo”) 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) Mr.
Giancristoforo is President of the Township Board of Commissioners (“Board of
Commissioners”); (2) there is a vacancy in the position of Township Secretary due to
the recent resignation of the individual who was serving in that position; (3) under the
First Class Township Code, the Board of Commissioners shall appoint a Township
Secretary who shall not be a Member of the Board of Commissioners; (4) the position of
Township Secretary is not covered by a collective bargaining agreement; (5) one of the
candidates for the position of Township Secretary is the fiancée of Mr. Giancristoforo;
and (6) the Board of Commissioners is scheduled to appoint a Township Secretary a
few weeks before the marriage ceremony of Mr. Giancristoforo and his fiancée is
scheduled to take place, you are advised as follows.
Subject to the de minimis exclusion and the class/subclass exclusion set forth
within the Ethics Act’s definition of the term "conflict" or "conflict of interest,” 65 Pa.C.S.
§ 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Giancristoforo would have a
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April 8, 2014
Page 6
conflict of interest in matters before the Board of Commissioners that would financially
impact him, a member of his immediate family, or a business with which he or a
member of his immediate family is associated. Mr. Giancristoforo’s fiancée is not a
member of his “immediate family” as that term is defined in the Ethics Act. Therefore,
Mr. Giancristoforo’s relationship with his fiancée in and of itself would not form the basis
of a conflict of interest for him under the Ethics Act in matters before the Board of
Commissioners. However, when Mr. Giancristoforo’s fiancée would become his
spouse, she would then be considered a member of his “immediate family” as that term
is defined in the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, Mr.
Giancristoforo would generally have a conflict of interest in matters before the Board of
Commissioners that would financially impact him or his spouse.
Since Mr. Giancristoforo’s fiancée is not a member of his immediate family,
Section 1103(a) of the Ethics Act would not prohibit him from participating in
discussions and actions of the Board of Commissioners involving the selection of an
individual to serve in the position of Township Secretary where his fiancée would be a
candidate for the position. If Mr. Giancristoforo’s fiancée would be appointed as the
Township Secretary and would thereafter become his spouse, Mr. Giancristoforo would
then have a conflict of interest and would violate Section 1103(a) of the Ethics Act in his
official capacity as a Township Commissioner by participating in matter(s) involving the
Township Secretary—including but not limited to expenditure(s) for pension benefits,
health insurance, vacation time, and the like or disciplinary action(s)—to the extent that:
(1) Mr. Giancristoforo would be consciously aware of a private pecuniary benefit for his
spouse; (2) his official action would constitute one or more specific steps to attain that
benefit; and (3) neither the de minimis exclusion nor the class/subclass exclusion would
be applicable. To the extent the Township budget would include funding for the
Township Secretary’s salary and benefits as a separate line item, Mr. Giancristoforo
would have a conflict of interest as to that particular line item. However, if the Township
Secretary’s salary and benefits would not be a separate line item on the Township
budget, Mr. Giancristoforo would have a conflict of interest as to the Township budget in
its entirety. In each instance of a conflict of interest, Mr. Giancristoforo 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. 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
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April 8, 2014
Page 7
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