HomeMy WebLinkAbout15-554 Solt
ADVICE OF COUNSEL
August 7, 2015
Sharon F. Solt, Supervisor
Eldred Township Board of Supervisors
P.O. Box 600
490 Kunkletown Road
Kunkletown, PA 18058
15-554
Dear Ms. Solt:
This responds to your letter dated July 10, 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 a Supervisor for
Eldred Township with regard to voting on plans, applications, or other issues regarding
the extraction of spring water from a parcel of land in Eldred Township by Deer
Park/Nestlé Waters USA, where the Supervisor’s spouse is employed by Nestlé Purina
PetCare, Inc.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are a Supervisor for Eldred Township (“Township”), located in Monroe
County, Pennsylvania. You are also the Secretary/Treasurer for the Township. The
Township is governed by a three-Member Board of Supervisors (“Board of
Supervisors”).
You state that Deer Park, a division of Nestlé Waters USA (“Nestlé Waters”),
under the global heading of Nestlé, Inc., has been doing testing on a parcel of land in
the Township with regard to the potential of extracting spring water to be transported to
Breinigsville, Pennsylvania, for bottling. You state that no plans have been submitted to
the Township at this point and that it is believed plans might be submitted sometime this
year.
You are not employed by Nestlé, Inc. Your husband is employed by Nestlé
Purina PetCare, Inc. (“Nestlé Purina”), located in Allentown, Pennsylvania. You state
that a Township resident has brought to the attention of the Board of Supervisors the
Township resident’s belief that it would be a potential conflict of interest for you to vote
on any Deer Park/Nestlé Waters land development plan applications and any other
related issues which would arise.
Solt, 15-554
August 7, 2015
Page 2
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would be precluded from voting on any plans, applications,
or other issues regarding any facet of Deer Park/Nestlé Waters water
extraction processes that may come before the Board of Supervisors; and
(2) If you would have a conflict of interest under the Ethics Act, whether you
would be permitted to vote to break a tie vote of the other two Township
Supervisors on a Deer Park/Nestlé Waters land development plan
application provided that you would disclose your husband’s employment
with Nestlé Purina.
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. As the Township Secretary/Treasurer, you are a public official/public
employee 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.
Solt, 15-554
August 7, 2015
Page 3
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
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.
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.”
Solt, 15-554
August 7, 2015
Page 4
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.
Having established the above general principles, your specific questions shall
now be considered.
In response to your first question, you are advised as follows.
Your husband is a member of your “immediate family” as that term is defined in
the Ethics Act. Nestlé Purina is a business with which your husband is associated in his
capacity as an employee. There is no basis in the submitted facts to conclude that
either Deer Park or Nestlé Waters is a business with which your husband is associated.
Cf., Confidential Opinion, 92-003; Pertile, Advice 10-610. Accordingly, absent some
basis for a conflict of interest such as a private pecuniary benefit to you, a member of
your immediate family such as your husband, or a business with which you or a
member of your immediate family is associated such as Nestlé Purina, you would not
have a conflict of interest under Section 1103(a) of the Ethics Act in voting as a
Township Supervisor on plans, applications, or other issues regarding Deer Park/Nestlé
Waters extraction processes.
With regard to your second question, you are advised as follows.
Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you
would be required to abstain fully from participation in each instance of a conflict of
interest. The exception for breaking a tie vote despite a conflict is available exclusively
to members of three-member governing bodies who first abstain and disclose their
conflicts as required by Section 1103(j) of the Ethics Act. See, Garner, Opinion 93-004;
Pavlovic, Opinion 02-005. Because the Board of Supervisors consists of three
Members, Section 1103(j) would permit you to vote to break a tie if the other two
Township Supervisors would cast opposing votes on a matter in which you would have
a conflict of interest, provided that you would initially: (1) abstain from the vote; and (2)
fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. However,
in voting to break a tie vote, you could not otherwise use the authority of office, such as
by advocating your view, in the matter.
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 Eldred Township (“Township”), located in
Monroe 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. As the
Township Secretary/Treasurer, you are a public official/public employee subject to the
provisions of the Ethics Act. Based upon the submitted facts that: (1) the Township is
governed by a three-Member Board of Supervisors (“Board of Supervisors”); (2) Deer
Park, a division of Nestlé Waters USA (“Nestlé Waters”), under the global heading of
Nestlé, Inc., has been doing testing on a parcel of land in the Township with regard to
the potential of extracting spring water to be transported to Breinigsville, Pennsylvania,
for bottling; (3) no plans have been submitted to the Township at this point, and it is
believed plans might be submitted sometime this year; (4) you are not employed by
Nestlé, Inc.; (5) your husband is employed by Nestlé Purina PetCare, Inc. (“Nestlé
Purina”), located in Allentown, Pennsylvania; and (6) a Township resident has brought
to the attention of the Board of Supervisors the Township resident’s belief that it would
Solt, 15-554
August 7, 2015
Page 5
be a potential conflict of interest for you to vote on any Deer Park/Nestlé Waters land
development plan applications and any other related issues which would arise, you are
advised as follows.
Your husband is a member of your “immediate family” as that term is defined in
the Ethics Act. Nestlé Purina is a business with which your husband is associated in his
capacity as an employee. There is no basis in the submitted facts to conclude that
either Deer Park or Nestlé Waters is a business with which your husband is associated.
Accordingly, absent some basis for a conflict of interest such as a private pecuniary
benefit to you, a member of your immediate family such as your husband, or a business
with which you or a member of your immediate family is associated such as Nestlé
Purina, you would not have a conflict of interest under Section 1103(a) of the Ethics Act
in voting as a Township Supervisor on plans, applications, or other issues regarding
Deer Park/Nestlé Waters extraction processes.
Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you
would be required to abstain fully from participation in each instance of a conflict of
interest. Because the Board of Supervisors consists of three Members, Section 1103(j)
would permit you to vote to break a tie if the other two Township Supervisors would cast
opposing votes on a matter in which you would have a conflict of interest, provided that
you would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. However, in voting to break a tie
vote, you could not otherwise use the authority of office, such as by advocating your
view, in the matter. 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
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