HomeMy WebLinkAbout15-534 Berti
ADVICE OF COUNSEL
May 19, 2015
John A. Berti, Jr.
134 Manor Drive
Shavertown, PA 18708
15-534
Dear Mr. Berti:
This responds to your letter dated March 26, 2015, by which you requested an
advisory from the Pennsylvania State Ethics Commission (“Commission”).
Issue:
Whether, pursuant to Section 1103(a) of the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), an individual who would be elected as a
township supervisor would have a conflict of interest with regard to participating in
matters before the township board of supervisors that would financially impact a
volunteer fire department that serves the township, where the individual is a trustee of
the volunteer fire department.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are currently serving a five-year term as a Trustee of the Shavertown
Volunteer Fire Department (“Fire Department”). The Fire Department and the
Trucksville Volunteer Fire Company both serve Kingston Township (“Township”),
located in Luzerne County, Pennsylvania. The Township and the Commonwealth of
Pennsylvania annually grant operating funds to the Fire Department and the Trucksville
Volunteer Fire Company.
You are seeking election in 2015 as a Township Supervisor. You ask whether, if
you would be elected as a Township Supervisor, the Ethics Act would permit you to
participate in deliberations and votes on matters before the Township Board of
Supervisors that would financially impact the Fire Department but that would not
financially impact you or your family.
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
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May 19, 2015
Page 2
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.
If you would be elected as a Township Supervisor, upon assuming said position,
you would in that capacity be 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
employee, a member of his immediate family or a business
Berti, 15-534
May 19, 2015
Page 3
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 addressing your specific question, the threshold issue is whether the Fire
Department would be considered a part of the Township or a private entity separate
from the Township.
For purposes of the Ethics Act, depending upon the circumstances in a given
case, a fire company may be considered to be part of a governmental body/political
subdivision or a private entity. Among the most significant factors in determining the
status of a fire company is the degree to which the fire company is funded and
controlled by the governmental body/political subdivision, or alternatively raises its own
funds and governs itself.
In the instant matter, the submitted facts are insufficient to enable a conclusive
determination as to whether the Fire Department would be considered a private entity
and would not be considered a part of the Township. Therefore, you are generally
advised as follows.
If the Fire Department would be considered a private entity and would not be
considered a part of the Township, the Fire Department would be a “business” as that
term is defined by the Ethics Act, and the Fire Department would be a business with
which you are associated in your capacity as a Trustee. Accordingly, under such
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May 19, 2015
Page 4
circumstances, upon taking office as a Township Supervisor, you generally would 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 Department—
regardless of whether such matter(s) would not financially impact you or your family. 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.
If the Fire Department would not be considered a private entity and would be
considered a part of the Township, absent a 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, 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 Department.
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:
If you would be elected as a Supervisor for Kingston Township
(“Township”), located in Luzerne County, Pennsylvania, upon assuming said position,
you would in that capacity be a public official subject to the provisions of the Public
Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The
submitted facts are insufficient to enable a conclusive determination as to whether the
Shavertown Volunteer Fire Department (“Fire Department”), of which you are a Trustee,
would be considered a private entity and would not be considered a part of the
Township. Therefore, you are generally advised as follows.
If the Fire Department would be considered a private entity and would not be
considered a part of the Township, the Fire Department would be a “business” as that
term is defined by the Ethics Act, and the Fire Department would be a business with
which you are associated in your capacity as a Trustee. Accordingly, under such
circumstances, upon taking office as a Township Supervisor, you generally would 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 Department—
regardless of whether such matter(s) would not financially impact you or your family. 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.
If the Fire Department would not be considered a private entity and would be
considered a part of the Township, absent a 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, 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 Department.
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
Berti, 15-534
May 19, 2015
Page 5
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