HomeMy WebLinkAbout15-528 Casciola
ADVICE OF COUNSEL
April 6, 2015
Thomas A. Casciola
17 Ridgewood Drive
McDonald, PA 15057-4445
15-528
Dear Mr. Casciola:
This responds to your letter dated March 1, 2015, postmarked March 4, 2015, by
which you requested an advisory from the Pennsylvania State Ethics Commission
(“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 an individual
serving as a township supervisor, who along with his wife owns a small office building
located in the township, with regard to leasing space in such building to a municipal
authority which currently leases space in the township municipal building.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are a Supervisor for Cecil Township (“Township”), located in Washington
County, Pennsylvania. You and your wife own a small office building (the “Office
Building”) located in the Township that operates as a company named “Cecil Town
Center LLC” (the “Company”). The Office Building is new and has approximately 1,000
square feet of space that has not yet been leased.
The Cecil Township Municipal Authority (“Authority”) currently rents
approximately 485 square feet of space in the Cecil Township Municipal Building
(“Municipal Building”). The Authority has outgrown its current space, and there is
insufficient space available in the Municipal Building to meet the Authority’s needs.
The Authority began looking at other office buildings in the area where the
Authority could double its current space, and the Authority recently approached you
about leasing approximately 900 square feet of space in the Office Building. You state
that you did not contact the Authority and that the Authority came across your ad which
included costs lower than those of other places investigated by the Authority. You
further state that the space in the Office Building is the closest available to the
Authority’s current space. You additionally state that the space in the Office Building
would be custom built-out to meet the Authority’s exact needs and that the space should
cost nearly half the rate of equivalent office space elsewhere.
Casciola, 15-528
April 6, 2015
Page 2
The Authority is advertising for space to lease and soliciting sealed proposals
under a Request for Proposals for office space. You state that you told the Authority
that you could formally respond to it regarding space in the Office Building only after the
appearance of the Authority’s advertisement and contingent upon “clearance” by the
Commission.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon you with regard to submitting to the
Authority a sealed proposal to lease the Authority space in the Office Building.
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).
Casciola, 15-528
April 6, 2015
Page 3
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
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.
"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.
It is noted that Section 1103(a) of the Ethics Act does not prohibit public
officials/public employees from having outside business activities or employment.
However, 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
may not use the authority of his public position--or confidential information obtained by
being in that position--for the advancement of his own private pecuniary benefit or that
of a business with which he is associated. Pancoe, Opinion 89-011. Examples of
conduct that could form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act would include the pursuit of a private business opportunity in the course of
public action (Metrick, Order 1037) and the participation in an official capacity as to
matters involving the business with which the public official/public employee is
associated in his private capacity or private client(s) (Miller, Opinion 89-024;
Kannebecker, Opinion 92-010). A reasonable and legitimate expectation that a business
relationship will form may support a finding of a conflict of interest (Amato, Opinion 89-
002).
Casciola, 15-528
April 6, 2015
Page 4
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware 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.” Id., 610 Pa. at 528, 22 A.3d at 231.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), provide in part that no person shall offer or give to a public official/public
employee anything of monetary value and no public official/public employee shall solicit
or accept anything of monetary value based upon the understanding that the vote,
official action, or judgment of the public official/public employee would be influenced
thereby. Reference is made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a complete response to
the question presented.
Having established the above general principles, you are advised as follows.
Your wife is a member of your immediate family as that term is defined in the
Ethics Act. The Company is a business with which you and your wife are associated in
your capacities as owners.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Therefore, Section 1103(a)
would impose restrictions upon you in your capacity as a public official, rather than upon
you in your private capacity.
The Ethics Act would not restrict you, in your private capacity, from submitting to
the Authority a sealed proposal to lease the Authority space in the Office Building.
However, at such times as you would have a business relationship with or would have a
reasonable expectation of developing a business relationship with the Authority, you
would have a conflict of interest and would violate Section 1103(a) of the Ethics Act by
participating in your official capacity as a Township Supervisor in matter(s) involving the
Authority if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family such as your wife, or the Company; (2) your action(s)
would constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
As noted above, in each instance of a conflict of interest, you 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.
Casciola, 15-528
April 6, 2015
Page 5
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:
As a Supervisor for Cecil Township (“Township”), located in
Washington County, Pennsylvania, 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) you and your wife own a small office building
(the “Office Building”) located in the Township that operates as a company named
“Cecil Town Center LLC” (the “Company”); (2) the Office Building is new and has
approximately 1,000 square feet of space that has not yet been leased; (3) the Cecil
Township Municipal Authority (“Authority”) currently rents approximately 485 square feet
of space in the Cecil Township Municipal Building (“Municipal Building”); (4) the
Authority has outgrown its current space, and there is insufficient space available in the
Municipal Building to meet the Authority’s needs; (5) the Authority began looking at
other office buildings in the area where the Authority could double its current space, and
the Authority recently approached you about leasing approximately 900 square feet of
space in the Office Building; (6) you did not contact the Authority, and the Authority
came across your ad which included costs lower than those of other places investigated
by the Authority; (7) the space in the Office Building is the closest available to the
Authority’s current space; (8) the space in the Office Building would be custom built-out
to meet the Authority’s exact needs, and the space should cost nearly half the rate of
equivalent office space elsewhere; (9) the Authority is advertising for space to lease and
soliciting sealed proposals under a Request for Proposals for office space; and (10) you
told the Authority that you could formally respond to it regarding space in the Office
Building only after the appearance of the Authority’s advertisement and contingent upon
“clearance” by the Pennsylvania State Ethics Commission, you are advised as follows.
Your wife is a member of your immediate family as that term is defined in the
Ethics Act. The Company is a business with which you and your wife are associated in
your capacities as owners. Section 1103(a) of the Ethics Act, pertaining to conflict of
interest, imposes restrictions upon public officials and public employees. Therefore,
Section 1103(a) would impose restrictions upon you in your capacity as a public official,
rather than upon you in your private capacity.
The Ethics Act would not restrict you, in your private capacity, from submitting to
the Authority a sealed proposal to lease the Authority space in the Office Building.
However, at such times as you would have a business relationship with or would have a
reasonable expectation of developing a business relationship with the Authority, you
would have a conflict of interest and would violate Section 1103(a) of the Ethics Act by
participating in your official capacity as a Township Supervisor in matter(s) involving the
Authority if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family such as your wife, or the Company; (2) your action(s)
would constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable. In each instance of a conflict of
interest, you 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
Casciola, 15-528
April 6, 2015
Page 6
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
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