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HomeMy WebLinkAbout15-555 Bridges ADVICE OF COUNSEL August 10, 2015 Lindell Bridges 6266 Lakeside Drive Sharpsville, PA 16150 15-555 Dear Mr. Bridges: This responds to your letter dated July 9, 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 member and chairman of a township vacancy board with regard to voting to appoint an individual who resides with him and is his business partner in a geologic consulting firm to fill a vacancy on the township board of supervisors. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are a Member and Chairman of the Vacancy Board of South Pymatuning Township (“Township”), located in Mercer County, Pennsylvania. One of the three Members of the Township Board of Supervisors (“Board of Supervisors”) recently resigned. The departed Supervisor’s term ends on December 31, 2015. The remaining two Township Supervisors were unable to come to an agreement as to whom they would appoint to fill the vacancy on the Board of Supervisors. One Supervisor nominated Laurel Alexander (“Ms. Alexander”), an individual who is not married to you but resides with you and is your business partner in a geologic consulting firm. The other Supervisor nominated another candidate. You expect Ms. Alexander to again be nominated to fill the vacancy at the upcoming Vacancy Board meeting. You state that the compensation for completing the term would be negligible. Additionally, you state that you do not foresee the Township needing the services of the geologic consulting firm by the end of the year, when the term would end, and that most likely, the Township will never need a geologic consulting firm. Bridges, 15-555 August 10, 2015 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would permit you to vote to appoint Ms. Alexander to fill the vacancy on the Board of Supervisors. 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 Vacancy Board, 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 related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions Bridges, 15-555 August 10, 2015 Page 3 "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. 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 applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Vacancy Board that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. There is no basis in the submitted facts to conclude that Ms. Alexander is a member of your immediate family or that the appointment of Ms. Alexander to complete the aforesaid term of the departed Township Supervisor would result in a private pecuniary benefit to you or the geologic consulting firm. Accordingly, you are advised that you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to appoint Ms. Alexander to fill the vacancy on the Board of Supervisors. Bridges, 15-555 August 10, 2015 Page 4 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 Member and Chairman of the Vacancy Board of South Pymatuning Township (“Township”), located in Mercer 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) one of the three Members of the Township Board of Supervisors (“Board of Supervisors”) recently resigned; (2) the departed Supervisor’s term ends on December 31, 2015; (3) the remaining two Township Supervisors were unable to come to an agreement as to whom they would appoint to fill the vacancy on the Board of Supervisors; (4) one Supervisor nominated Laurel Alexander (“Ms. Alexander”), an individual who is not married to you but resides with you and is your business partner in a geologic consulting firm; (5) the other Supervisor nominated another candidate; (6) you expect Ms. Alexander to again be nominated to fill the vacancy at the upcoming Vacancy Board meeting; (7) the compensation for completing the term would be negligible; and (8) you do not foresee the Township needing the services of the geologic consulting firm by the end of the year when the term would end, and most likely, the Township will never need a geologic consulting firm, you are advised as follows. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Vacancy Board that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. There is no basis in the submitted facts to conclude that Ms. Alexander is a member of your immediate family or that the appointment of Ms. Alexander to complete the aforesaid term of the departed Township Supervisor would result in a private pecuniary benefit to you or the geologic consulting firm. Accordingly, you are advised that you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to appoint Ms. Alexander to fill the vacancy on the Board of Supervisors. 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 Bridges, 15-555 August 10, 2015 Page 5 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