HomeMy WebLinkAbout14-566 Hassler
ADVICE OF COUNSEL
December 19, 2014
Dale N. Hassler
115 Millrace Road
Northampton, PA 18067
14-566
Dear Mr. Hassler:
This responds to your letter dated November 21, 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
supervisor with regard to participating in discussions or votes by the township board of
supervisors on budget allocations or other matters pertaining to a volunteer fire
company, where the township supervisor: (1) is a member and firefighter of the
volunteer fire company; and (2) is an appointed fire marshal.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts, the material portion of which may be fairly summarized as
follows.
In January 2014, you took office as a Supervisor for Allen Township
(“Township”).
You are an active member and firefighter of Allen Township Fire Company No. 1
(the “Fire Company”). You also hold the position of Fire Marshal, having been
appointed to that position by the Pennsylvania State Police.
The Fire Company is governed by a five-member Board of Trustees, five officers,
and three firefighting officials. You state that you are not a Trustee, officer, or
firefighting official of the Fire Company. Your role as Fire Marshal places you fourth in
the firefighting chain of command. You receive no compensation from the Fire
Company for performing your duties with the Fire Company.
The Township allocates a certain sum in its budget to be set aside to reimburse
the Fire Company for operational expenses, and the sum proposed for such purpose for
2015 is $80,000. The Township also proposes to set aside $40,000 or $50,000 in a
capital account to be reserved and used in the future toward the purchase of fire
apparatus.
Hassler, 14-566
December 19, 2014
Page 2
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit you to participate in discussions or votes by the Township
Board of Supervisors on budget allocations or other matters pertaining to the Fire
Company.
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, 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
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December 19, 2014
Page 3
"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.
"Business."
Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated."
Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Based upon the submitted facts, the Fire Company is not a business with which
you are associated because you are not a director, officer, owner, employee, or holder
of a financial interest in the Fire Company. Since the Fire Company is not a business
with which you are associated, you are advised that you would not have a conflict of
interest under Section 1103(a) of the Ethics Act in matter(s) before the Township Board
of Supervisors that would financially impact the Fire Company but that would not
financially impact you, a member of your immediate family, or a business with which you
or a member of your immediate family is associated. Therefore, absent some basis for
Hassler, 14-566
December 19, 2014
Page 4
a conflict of interest such as a private pecuniary benefit to you, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated, Section 1103(a) of the Ethics Act would not prohibit you from participating in
discussion(s) or vote(s) by the Township Board of Supervisors on budget allocations or
other matter(s) pertaining to the Fire Company.
In light of the above, it is not necessary to determine whether the Fire Company
would be considered a “business” as that term is defined in the Ethics Act.
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:
Based upon the submitted facts that: (1) in January 2014, you took
office as a Supervisor for Allen Township (“Township”); (2) you are an active member
and firefighter of Allen Township Fire Company No. 1 (the “Fire Company”); (3) you also
hold the position of Fire Marshal, having been appointed to that position by the
Pennsylvania State Police; (4) the Fire Company is governed by a five-member Board
of Trustees, five officers, and three firefighting officials; (5) you are not a Trustee,
officer, or firefighting official of the Fire Company; (6) your role as Fire Marshal places
you fourth in the firefighting chain of command; (7) you receive no compensation from
the Fire Company for performing your duties with the Fire Company; (8) the Township
allocates a certain sum in its budget to be set aside to reimburse the Fire Company for
operational expenses, and the sum proposed for such purpose for 2015 is $80,000; and
(9) the Township also proposes to set aside $40,000 or $50,000 in a capital account to
be reserved and used in the future toward the purchase of fire apparatus, you are
advised as follows.
As a Township Supervisor, 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, the Fire Company is not a business with which you are
associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Fire Company. Since the Fire Company is not a business with
which you are associated, you are advised that you would not have a conflict of interest
under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of
Supervisors that would financially impact the Fire Company but that would not
financially impact you, a member of your immediate family, or a business with which you
or a member of your immediate family is associated. Therefore, absent some basis for
a conflict of interest such as a private pecuniary benefit to you, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated, Section 1103(a) of the Ethics Act would not prohibit you from participating in
discussion(s) or vote(s) by the Township Board of Supervisors on budget allocations or
other matter(s) pertaining to the Fire Company. 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
Hassler, 14-566
December 19, 2014
Page 5
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