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.
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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
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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.
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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
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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