HomeMy WebLinkAbout16-511 Hildebrand
ADVICE OF COUNSEL
February 19, 2016
Richard Hildebrand, Jr.
394 Valley Hi Court
Walnutport, PA 18088
16-511
Dear Mr. Hildebrand:
This responds to your letter dated December 23, 2015, received December 31,
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 with regard to participating in matters before the township board of
supervisors that would financially impact a volunteer fire company which is designated
as the officially recognized fire company for the township, where the township
supervisor is the fire chief of the volunteer fire company.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are a newly-elected Supervisor for Lehigh Township (“Township”), located in
Northampton County, Pennsylvania.
You are a Member and the Fire Chief of the Lehigh Township Volunteer Fire
Company No. 1 (the “Fire Company”). You have submitted a copy of the Constitution
and By-laws of the Fire Company, which document is incorporated herein by reference.
Pursuant to Chapter 11 of the Code of the Township of Lehigh (“Lehigh
Township Code”), the Fire Company is designated as the officially recognized fire
company for the Township. Chapter 11 of the Lehigh Township Code sets forth the
authorized activities of the Fire Company and its Members.
You state that you are recognized by the Township Board of Supervisors as the
Fire Chief of the Township and that you are also a Deputy to the EMA Coordinator. You
receive no compensation for serving as the Fire Chief of the Fire Company, the Fire
Chief of the Township, or a Deputy to the EMA Coordinator, and you have no expense
accounts or discretionary funds at your control.
Hildebrand, 16-511
February 19, 2016
Page 2
The Fire Company is a non-profit organization. A request by the Fire Company
for the Township to make a purchase is approved at a Fire Company meeting and then
forwarded to the Township in writing.
Based upon the above submitted facts, the question that is presented is whether
you would have a conflict of interest under the Ethics Act in matter(s) before the
Township Board of Supervisors that would financially impact the Fire Company.
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.
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).
Hildebrand, 16-511
February 19, 2016
Page 3
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.
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 addressing the question presented, the threshold issue is whether the Fire
Company would be considered a part of the Township or a private entity separate from
the Township.
Hildebrand, 16-511
February 19, 2016
Page 4
For purposes of the Ethics Act, depending upon the circumstances in a given
case, a fire company may be considered to be part of a governmental body/political
subdivision or a private entity. Among the most significant factors in determining the
status of a fire company is the degree to which the fire company is funded and
controlled by the governmental body/political subdivision, or alternatively raises its own
funds and governs itself.
In the instant matter, the submitted facts are insufficient to enable a conclusive
determination as to whether the Fire Company would be considered a private entity and
would not be considered a part of the Township. Therefore, you are generally advised
as follows.
If the Fire Company would be considered a private entity and would not be
considered a part of the Township, the Fire Company would be a “business” as that
term is defined by the Ethics Act, and the Fire Company would be a business with which
you are associated in your capacity as the Fire Chief. Accordingly, under such
circumstances, you generally would have a conflict of interest under Section 1103(a) of
the Ethics Act in matter(s) before the Township Board of Supervisors that would
financially impact the Fire Company. In each instance of a conflict of interest, you
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.
If the Fire Company would not be considered a private entity and would be
considered a part of the Township, absent a basis for a conflict of interest such as a
private pecuniary benefit to you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated, you would not have a
conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the
Township Board of Supervisors that would financially impact the Fire Company.
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 Lehigh Township (“Township”), located in
Northampton 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.
The submitted facts are insufficient to enable a conclusive determination as to whether
the Lehigh Township Volunteer Fire Company No. 1 (the “Fire Company”), of which you
are the Fire Chief, would be considered a private entity and would not be considered a
part of the Township. Therefore, you are generally advised as follows.
If the Fire Company would be considered a private entity and would not be
considered a part of the Township, the Fire Company would be a “business” as that
term is defined by the Ethics Act, and the Fire Company would be a business with which
you are associated in your capacity as the Fire Chief. Accordingly, under such
circumstances, you generally would have a conflict of interest under Section 1103(a) of
the Ethics Act in matter(s) before the Township Board of Supervisors that would
financially impact the Fire Company. In each instance of a conflict of interest, you
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.
Hildebrand, 16-511
February 19, 2016
Page 5
If the Fire Company would not be considered a private entity and would be
considered a part of the Township, absent a basis for a conflict of interest such as a
private pecuniary benefit to you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated, you would not have a
conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the
Township Board of Supervisors that would financially impact the Fire Company.
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