HomeMy WebLinkAbout15-505 Butler
ADVICE OF COUNSEL
February 13, 2015
Lester L. Butler, Jr., Chairman
Jefferson Township Board of Supervisors
487 Cortez Roard
Jefferson Township, PA 18436
15-505
Dear Mr. Butler:
This responds to your letter dated December 17, 2014, received December 22,
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 three-member township board of supervisors, who is employed by a
municipal authority, with regard to seconding or voting on a motion to appoint an
individual as a member of the board of the municipal authority, where the individual to
be appointed is the spouse of another township supervisor who would abstain from
voting on such appointment.
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 Jefferson
Township (“Township”). The Township Board of Supervisors consists of three
Members.
In addition to serving as a Township Supervisor, you are employed with the
Jefferson Township Sewer Authority (“Authority”). You state that the Township Board of
Supervisors makes appointments to the Authority Board and that you have abstained
from voting on such appointments in the past.
There is a scheduled vacancy on the Authority Board to be filled in the near
future. It is anticipated that the Authority Board Member whose term will be expiring will
be nominated for another term. The aforesaid Authority Board Member is the spouse of
a Township Supervisor (the “Married Supervisor”). You state that the Married
Supervisor has indicated that he would abstain from voting to appoint his spouse to the
Authority Board.
Butler, 15-505
February 13, 2015
Page 2
Based upon the above submitted facts, you seek guidance as to the procedure
that you should follow where the Married Supervisor would abstain from a vote to
appoint his spouse to the Authority Board. In particular, you ask whether you would be
permitted to vote after announcing that you have a conflict of interest.
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 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 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
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February 13, 2015
Page 3
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.
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. Thus, a public official’s
participation in negotiations, meetings, discussions, deliberations, written and electronic
communications, and/or vote(s) may satisfy the element of “use of authority of office.”
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.
Per State Ethics Commission precedent, a public official/public employee
generally would have a conflict of interest in matters pertaining to a person who, in a
different capacity, has authority or control over the public official/public employee. See,
Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001
(involving reciprocity of power).
Having established the above general principles, you are advised as follows.
In your capacity as a Member and Chairman of the Township Board of
Supervisors, you would have a conflict of interest with regard to nominating and/or
voting to appoint/reappoint Member(s) of the Authority Board due to your status as an
Authority employee. Cf., Schrempf, Advice 05-529; Kynett, Advice 03-512; Welsh,
Advice 02-537; Tobin, Advice 00-502.
The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act
are strictly limited to voting and do not authorize an individual with a conflict to make a
motion to put the matter in a posture for a vote. When two members on a three-
member board would have conflicts of interest, only the non-conflicted member could
make a motion. Since the non-conflicted member could not second his own motion and
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February 13, 2015
Page 4
it would be otherwise impossible to obtain a second to the motion, a conflicted member,
having previously abstained and disclosed his conflict, could then second the motion if
he would so choose. A conflicted member could not discuss or advocate as to the
motion. A conflicted member could only vote on the motion. Cf., Confidential Opinion,
04-003.
Therefore, where you and a second Township Supervisor would have conflicts of
interest with regard to voting to appoint a particular individual to the Authority Board,
only the third, non-conflicted Township Supervisor could make a motion. If such a
motion would not be made, there would be no opportunity for a motion to be seconded.
If such a motion would be made, you, having previously abstained and disclosed the
conflict, could then second the motion if you would so choose. You could not discuss or
advocate as to the motion. You could only vote on the motion. Cf., Confidential
Opinion, 04-003.
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 Municipality Authorities Act.
Conclusion:
As a Member and Chairman of the Board of Supervisors of
Jefferson 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) the Township Board of Supervisors consists of
three Members; (2) in addition to serving as a Township Supervisor, you are employed
with the Jefferson Township Sewer Authority (“Authority”); (3) the Township Board of
Supervisors makes appointments to the Authority Board, and you have abstained from
voting on such appointments in the past; (4) there is a scheduled vacancy on the
Authority Board to be filled in the near future; (5) it is anticipated that the Authority
Board Member whose term will be expiring will be nominated for another term; (6) the
aforesaid Authority Board Member is the spouse of a Township Supervisor (the “Married
Supervisor”); and (7) the Married Supervisor has indicated that he would abstain from
voting to appoint his spouse to the Authority Board, you are advised as follows.
In your capacity as a Member and Chairman of the Township Board of
Supervisors, you would have a conflict of interest with regard to nominating and/or
voting to appoint/reappoint Member(s) of the Authority Board due to your status as an
Authority employee.
Where you and a second Township Supervisor would have conflicts of interest
with regard to voting to appoint a particular individual to the Authority Board, only the
third, non-conflicted Township Supervisor could make a motion. If such a motion would
not be made, there would be no opportunity for a motion to be seconded. If such a
motion would be made, you, having previously abstained and disclosed the conflict,
could then second the motion if you would so choose. You could not discuss or
advocate as to the motion. You could only vote on the motion. 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
.
Butler, 15-505
February 13, 2015
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