The URL can be used to link to this page

Home My WebLink About16-509 Barbin ADVICE OF COUNSEL February 19, 2016 William Gleason Barbin, Esquire Gleason, Barbin & Markovitz, LLP 206 Main Street Johnstown, PA 15901-1682 16-509 Dear Mr. Gleason: This responds to your letters dated December 8, 2015, and December 17, 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 employed by a municipal authority, with regard to voting on the appointment of member(s) of the municipal authority board. Facts: As Solicitor for the Township of Conemaugh (“Township”), located in Somerset County, Pennsylvania, you have been authorized by Kenneth J. Tressler (“Mr. Tressler”) to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Tressler is a newly-elected Township Supervisor. In addition to serving as a Township Supervisor, Mr. Tressler is employed full-time with the Conemaugh Township Municipal Authority (“Authority”). Members of the Authority Board are appointed by the Township Board of Supervisors. The Authority Board makes decisions with respect to Mr. Tressler’s wages, hours, and conditions of employment as an Authority employee. Based upon the above submitted facts, you ask whether Mr. Tressler would be permitted to vote on the appointment of Member(s) of the Authority Board. 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. Barbin, 16-509 February 19, 2016 Page 2 As a Township Supervisor, Mr. Tressler 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 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. Barbin, 16-509 February 19, 2016 Page 3 "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. 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. Per State Ethics Commission precedent, a public official/public employee generally would have a conflict of interest in matters pertaining to a person who, in a different capacity, has authority or control over the public official/public employee. See, Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). Having established the above general principles, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, Mr. Tressler would have a conflict of interest in his capacity as a Township Supervisor with regard to nominating and/or voting to appoint/reappoint Member(s) of the Authority Board due to his status as an Authority employee. Cf., Butler, Advice 15-505; Schrempf, Advice 05-529; Kynett, Advice 03-512; Welsh, Advice 02-537; Tobin, Advice 00-502. As noted above, in each instance of a conflict of interest, Mr. Tressler 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. 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 or the Municipality Authorities Act. Conclusion: Based upon the submitted facts that: (1) Kenneth J. Tressler (“Mr. Tressler”) is a newly-elected Supervisor for the Township of Conemaugh (“Township”), located in Somerset County, Pennsylvania; (2) in addition to serving as a Township Supervisor, Mr. Tressler is employed full-time with the Conemaugh Township Municipal Authority (“Authority”); (3) Members of the Authority Board are appointed by the Township Board of Supervisors; and (4) the Authority Board makes decisions with respect to Mr. Tressler’s wages, hours, and conditions of employment as an Authority employee, you are advised as follows. Barbin, 16-509 February 19, 2016 Page 4 As a Township Supervisor, Mr. Tressler 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. Pursuant to Section 1103(a) of the Ethics Act, Mr. Tressler would have a conflict of interest in his capacity as a Township Supervisor with regard to nominating and/or voting to appoint/reappoint Member(s) of the Authority Board due to his status as an Authority employee. In each instance of a conflict of interest, Mr. Tressler 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. 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