HomeMy WebLinkAbout15-531 Bodnar, Jr.
ADVICE OF COUNSEL
May 12, 2015
David J. Bodnar, Jr.
49 E. Market Street
P.O. Box 436
Tresckow, PA 18254
15-531
Dear Mr. Bodnar:
This responds to your letter dated March 19, 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
employed as the Director of Planning and Development for Carbon County with regard to
seeking election or simultaneously serving as a township auditor.
Facts:
You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
You are currently employed as the Director of Planning and Development for
Carbon County (“County”), Pennsylvania. You have submitted a copy of a position
description for your position with the County, which document is incorporated herein by
reference.
As the Director of Planning and Development for the County, you oversee the
Community Development Block Grant (“CDBG”) program, the Home Rehabilitation
program, the Solid Waste program, the Farmland Preservation program, and the Planning
program. Part of your salary is reimbursed from the CDBG program, which is federally
funded, and from the County Recycling Coordinator Program Grant (903 Grant), which is
state funded. The remainder of your salary comes from the County’s General Fund.
You are interested in seeking election as an Auditor for your township (“Township”).
You seek guidance as to whether the Ethics Act would impose any prohibitions or
restrictions upon you with regard to seeking election or serving as a Township Auditor
while employed as the Director of Planning and Development for the County.
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
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May 12, 2015
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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 the Director of Planning and Development for the County, you are a public
employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code
§ 11.1. This conclusion is based upon the submitted position description, which when
reviewed on an objective basis, indicates clearly that the power exists to take or
recommend official action of a non-ministerial nature with respect to one or more of the
following: contracting; procurement; administering or monitoring grants or subsidies;
planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where
the economic impact is greater than de minimis on the interests of another person.
If you would be elected as a Township Auditor, upon assuming said position, you
would in that capacity be a public official subject to 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 pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
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May 12, 2015
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"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.
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 applying the above provisions of the Ethics Act to the instant matter, you are
advised that the Ethics Act would not prohibit you from seeking election as a Township
Auditor.
With regard to the question of simultaneous service, it is initially noted that the
General Assembly has the constitutional power to declare by law which offices are
incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily-declared
incompatibility precluding simultaneous service as the Director of Planning and
Development for the County and a Township Auditor.
Turning to the question of conflict of interest, where simultaneous service would
place the public official/public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent
conflict would exist, it would appear to be impossible, as a practical matter, for the public
official/public employee to function in the conflicting positions without running afoul of
Section 1103(a) of the Ethics Act.
Absent a statutorily-declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
would be required to abstain, and in each instance of a voting conflict, to abstain and
satisfy the disclosure requirements of Section 1103(j) as set forth above.
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude simultaneous service as the Director of
Planning and Development for the County and a Township Auditor. Consequently, such
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May 12, 2015
Page 4
simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
Based upon the submitted facts that: (1) you are currently employed
as the Director of Planning and Development for Carbon County (“County”), Pennsylvania;
(2) as the Director of Planning and Development for the County, you oversee the
Community Development Block Grant (“CDBG”) program, the Home Rehabilitation
program, the Solid Waste program, the Farmland Preservation program, and the Planning
program; (3) part of your salary is reimbursed from the CDBG program, which is federally
funded, and from the County Recycling Coordinator Program Grant (903 Grant), which is
state funded; (4) the remainder of your salary comes from the County’s General Fund; and
(5) you are interested in seeking election as an Auditor for your township (“Township”), you
are advised as follows.
As the Director of Planning and Development for the County, you are a public
employee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics
Act"), 65 Pa.C.S. § 1101 et seq. If you would be elected as a Township Auditor, upon
assuming said position, you would become a public official subject to the Ethics Act. The
Ethics Act would not prohibit you from seeking election as a Township Auditor. Subject to
the restrictions, conditions and qualifications set forth above, you may, consistent with
Section 1103(a) of the Ethics Act, simultaneously serve as the Director of Planning and
Development for the County and a Township Auditor. Lastly, the propriety of the proposed
course of conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, this 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 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