HomeMy WebLinkAbout14-533 Janoski
ADVICE OF COUNSEL
July 22, 2014
Patricia A. Janoski
368 Locust Hill Road
Cheswick, PA 15024
14-533
Dear Ms. Janoski:
This responds to your letter dated May 22, 2014 (postmarked May 31, 2014, and
received June 2, 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 member and
chairman of a five-member township board of supervisors with regard to making a
motion or voting to appoint herself as a part-time secretary/treasurer for the township.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Member and Chairman of the Board of Supervisors of Harmar
Township (“Township”). It is administratively noted that the Township Board of
Supervisors consists of five Members.
There is an open position for a Township Secretary/Treasurer, with a salary and
benefits established by the Township budget. You are interested in being appointed as
a part-time Township Secretary/Treasurer, for which position the Township Board of
Auditors would determine your compensation. See, 65 Pa.C.S. §§ 65703, 65803.
The narrow question that you have posed is whether the Ethics Act would permit
you to make a motion and vote to appoint yourself as a part-time Township
Secretary/Treasurer.
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.
Janoski, 14-533
July 22, 2014
Page 2
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
As a Member and Chairman of the Township Board of Supervisors, 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 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
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
Janoski, 14-533
July 22, 2014
Page 3
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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
One of the exclusions to the statutory definition of "conflict" or "conflict of
interest," referred to herein as 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. The Commission has determined the applicability of the de
minimis exclusion on a case-by-case basis, considering all relevant circumstances. In
the past, the Commission has found amounts up to approximately $1,200 to be de
minimis.
The following provisions of the Second Class Township Code are relevant to
your inquiry:
§ 65602. Organization meeting; appointment of
secretary and treasurer
(a) . . . The board of supervisors shall . . . appoint a
treasurer and a secretary. . . . Members of the board of
supervisors may be appointed as secretary-treasurer,
secretary or treasurer. With regard to boards of supervisors
which are designated as three-member boards, any
supervisor who is to be considered by the board for any
appointed township position or for employment by the
township as authorized by law shall not be excluded from
voting on the issue of such appointment or employment.
Action taken by a supervisor shall be deemed to be within
the scope of authority as a supervisor and shall not be
deemed to constitute an illegal or an improper conflict of
interest.
. . .
Janoski, 14-533
July 22, 2014
Page 4
(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(a), (c).
Although Section 65602 of the Second Class Township Code provides that a
supervisor serving on a three-member board is not excluded from voting on the issue of
her own appointment/employment to a position that is authorized by law, such as
secretary or treasurer, there is no authorization in the Second Class Township Code for
a supervisor serving on a five-member board to participate in appointing herself to a
compensated position with the township.
Because the Township Board of Supervisors is comprised of five Members,
Section 1103(a) of the Ethics Act would prohibit you from using any authority of your
public position as a Member/Chairman of the Township Board of Supervisors--including
but not limited to making a motion or voting--to further your appointment to the
compensated position of part-time Township Secretary/Treasurer, unless the
compensation you would receive as part-time Township Secretary/Treasurer would be
de minimis. Cf., Connelly, Order 1532.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a Member and Chairman of the Board of Supervisors of Harmar
Township (“Township”), 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. Based upon
the submitted facts that: (1) there is an open position for a Township
Secretary/Treasurer, with a salary and benefits established by the Township budget;
and (2) you are interested in being appointed as a part-time Township
Secretary/Treasurer, for which position the Township Board of Auditors would
determine your compensation, and additionally based upon the administratively noted
fact that the Township Board of Supervisors consists of five Members, you are advised
as follows.
Although Section 65602 of the Second Class Township Code, 65 Pa.C.S. §
65602, provides that a supervisor serving on a three-member board is not excluded
from voting on the issue of her own appointment/employment to a position that is
authorized by law, such as secretary or treasurer, there is no authorization in the
Second Class Township Code for a supervisor serving on a five-member board to
participate in appointing herself to a compensated position with the township. Because
the Township Board of Supervisors is comprised of five Members, Section 1103(a) of
the Ethics Act would prohibit you from using any authority of your public position as a
Member/Chairman of the Township Board of Supervisors--including but not limited to
making a motion or voting--to further your appointment to the compensated position of
part-time Township Secretary/Treasurer, unless the compensation you would receive as
part-time Township Secretary/Treasurer would be de minimis. 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
.
Janoski, 14-533
July 22, 2014
Page 5
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