HomeMy WebLinkAbout15-567 Wiley
ADVICE OF COUNSEL
December 31, 2015
J. Michael Wiley, Esquire
McCormick Law Firm
835 West Fourth Street
P.O. Box 577
Williamsport, PA 17703
15-567
Dear Mr. Wiley:
This responds to your letter dated November 16, 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 township
supervisor, who is also an employee of a regional authority, with regard to participating
in discussions, deliberations, votes, or other actions of the township board of
supervisors pertaining to the township’s approval of the potential sale by a municipal
authority of the municipal authority’s sewer system, where the regional authority has
expressed interest in purchasing the sewer system.
Facts:
As Solicitor for Muncy Creek Township (“Township”), located in Lycoming
County, Pennsylvania, you have been authorized by Township Supervisor Daniel R.
Whitmoyer (“Mr. Whitmoyer”) to request an advisory from the Commission on his behalf.
You have submitted facts that may be fairly summarized as follows.
The Township is a guarantor of the debt of the Muncy Creek Township Municipal
Authority (“Municipal Authority”) that is related to the Municipal Authority’s sewer system
(the “Sewer System”). The Municipal Authority might decide to sell the Sewer System.
Pursuant to certain agreements between the Township and the Municipal Authority, the
Township would be required to take official action to approve any decision by the
Municipal Authority to sell the Sewer System. You state that at present, the West
Branch Regional Authority (“Regional Authority”) and the Lycoming County Water and
Sanitary Authority (“County Authority”) have each publicly expressed interest in
purchasing the Sewer System.
Mr. Whitmoyer is employed as a Compliance Specialist with the Regional
Authority, in which capacity he is responsible for inspection work for the Regional
Authority when contractors are installing water mains, sewer mains, sewer laterals, and
other infrastructure. Mr. Whitmoyer also performs compliance work for the Regional
Wiley, 15-567
December 31, 2015
Page 2
Authority to ensure that the Regional Authority’s rules and regulations are followed in
the service area.
You state that concerns have been raised as to whether Mr. Whitmoyer should
be involved in discussions, deliberations, votes, or other actions of the Township Board
of Supervisors (“Board of Supervisors”) pertaining to the Township’s approval of the
potential sale of the Sewer System by the Municipal Authority. You state that it has
been suggested that Mr. Whitmoyer could receive some benefit in terms of his
employment—although nothing specific has been identified—if the Municipal Authority
would convey the Sewer System to the Regional Authority instead of the County
Authority.
Based upon the above submitted facts, you seek guidance as to whether Mr.
Whitmoyer would be prohibited from participating in discussions, deliberations, votes, or
other actions of the Board of Supervisors pertaining to the Township’s approval of the
potential sale of the Sewer System by the Municipal Authority.
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, Mr. Whitmoyer is 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
Wiley, 15-567
December 31, 2015
Page 3
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
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.
"Political subdivision."
Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
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.
Wiley, 15-567
December 31, 2015
Page 4
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.
Since the Regional Authority is a “political subdivision” and not a “business” as
defined by the Ethics Act, Mr. Whitmoyer would not have a conflict of interest under
Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would
financially impact the Regional Authority but that would not financially impact him, a
member of his immediate family, or a business with which he or a member of his
immediate family is associated. A pecuniary benefit flowing solely to a governmental
entity such as the Regional Authority would not form the basis for a conflict of interest
under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005;
McCarrier/Anderson, Opinion 98-008; Warso, Order 974.
You are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to Mr. Whitmoyer, a member of his immediate family, or a business
with which he or a member of his immediate family is associated, Mr. Whitmoyer would
not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to
participating in discussions, deliberations, votes, or other actions of the Board of
Supervisors pertaining to the Township’s approval of the potential sale of the Sewer
System by the Municipal Authority
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:
Based upon the submitted facts that: (1) Daniel R. Whitmoyer (“Mr.
Whitmoyer”) is a Supervisor for Muncy Creek Township (“Township”), located in
Lycoming County, Pennsylvania; (2) the Township is a guarantor of the debt of the
Muncy Creek Township Municipal Authority (“Municipal Authority”) that is related to the
Municipal Authority’s sewer system (the “Sewer System”); (3) the Municipal Authority
might decide to sell the Sewer System; (4) pursuant to certain agreements between the
Township and the Municipal Authority, the Township would be required to take official
action to approve any decision by the Municipal Authority to sell the Sewer System; (5)
at present, the West Branch Regional Authority (“Regional Authority”) and the Lycoming
County Water and Sanitary Authority (“County Authority”) have each publicly expressed
interest in purchasing the Sewer System; (6) Mr. Whitmoyer is employed as a
Compliance Specialist with the Regional Authority, in which capacity he is responsible
for inspection work for the Regional Authority when contractors are installing water
mains, sewer mains, sewer laterals, and other infrastructure; (7) Mr. Whitmoyer also
performs compliance work for the Regional Authority to ensure that the Regional
Authority’s rules and regulations are followed in the service area; (8) concerns have
been raised as to whether Mr. Whitmoyer should be involved in discussions,
deliberations, votes, or other actions of the Township Board of Supervisors (“Board of
Supervisors”) pertaining to the Township’s approval of the potential sale of the Sewer
System by the Municipal Authority; and (9) it has been suggested that Mr. Whitmoyer
could receive some benefit in terms of his employment—although nothing specific has
Wiley, 15-567
December 31, 2015
Page 5
been identified—if the Municipal Authority would convey the Sewer System to the
Regional Authority instead of the County Authority, you are advised as follows.
As a Township Supervisor, Mr. Whitmoyer is a public official subject to the
provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq. Since the Regional Authority is a “political subdivision” and not a
“business” as defined by the Ethics Act, Mr. Whitmoyer would not have a conflict of
interest under Section 1103(a) of the Ethics Act in matters before the Board of
Supervisors that would financially impact the Regional Authority but that would not
financially impact him, a member of his immediate family, or a business with which he or
a member of his immediate family is associated. A pecuniary benefit flowing solely to a
governmental entity such as the Regional Authority would not form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act. Absent some basis for a
conflict of interest such as a private pecuniary benefit to Mr. Whitmoyer, a member of
his immediate family, or a business with which he or a member of his immediate family
is associated, Mr. Whitmoyer would not have a conflict of interest under Section 1103(a)
of the Ethics Act with regard to participating in discussions, deliberations, votes, or other
actions of the Board of Supervisors pertaining to the Township’s approval of the
potential sale of the Sewer System by the Municipal Authority. 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