HomeMy WebLinkAbout16-512 Chamberlain
ADVICE OF COUNSEL
February 22, 2016
Melissa M. Chamberlain
46 Grove Street
Trucksville, PA 18708
16-512
Dear Ms. Chamberlain:
This responds to your letter dated 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, whose husband is an employee of the township road department, with
regard to voting on: (1) the annual township budget; (2) annual pay raises for township
employees; (3) boot allowances and uniform allotments for road department employees;
(4) end of year bonuses; (5) changes to township-provided health and life insurance
benefits; or (6) the bi-weekly township payroll.
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 Kingston Township (“Township”), located
in Luzerne County, Pennsylvania. The Township Board of Supervisors consists of five
Members.
Your husband is employed full-time with the Township Road Department (“Road
Department”). Road Department employees receive a yearly boot allowance of $200.00
and are provided with uniforms by the Township.
Some Township employees are paid a salary and other Township employees are
paid an hourly rate. You state that the Township does not reward individual Township
employees for job performance and that the Township annually gives Township
employees an across-the-board pay raise of a certain percentage.
You and your family are covered by the Township health insurance policy.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit you to vote on: (1) the annual Township budget; (2) annual pay
raises for Township employees; (3) boot allowances and uniform allotments for Road
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February 22, 2016
Page 2
Department employees; (4) end of year bonuses; (5) changes to Township-provided
health and life insurance benefits; and (6) the bi-weekly Township payroll.
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).
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
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February 22, 2016
Page 3
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.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
The Commission has determined the applicability of the de minimis exclusion on a
case-by-case basis, considering all relevant circumstances. In the past, the Commission
has found amounts up to approximately $1,200 to be de minimis.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
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February 22, 2016
Page 4
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your husband is a member of your “immediate family” as that term is defined in
the Ethics Act. Subject to the aforesaid 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 as a
Township Supervisor in matters that would financially impact you, a member of your
immediate family such as your husband, or a business with which you or a member of
your immediate family is associated.
You are advised that you would not have a conflict of interest with regard to
voting to approve the yearly boot allowance of $200.00 for Road Department employees
because the de minimis exclusion would be applicable as to such a vote.
With regard to the uniform allotments for Road Department employees, the
submitted facts do not indicate the cost of the uniforms or the number of uniforms
allotted for each Road Department employee. Additionally, the submitted facts are
insufficient to determine whether your husband is a member of a subclass of Township
Road Department employees who would be affected to the same degree by your
proposed vote(s) as to the uniform allotments and/or other matters.
Therefore, you are advised that unless the de minimis exclusion or the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable, you would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on: (1)
those portions of the annual Township budget that would financially impact your
husband; (2) annual pay raises for Township employees; (3) uniform allotments for
Road Department employees; (4) end of year bonuses; or (5) changes to Township-
provided health and life insurance benefits.
As noted above, 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.
With regard to the issue of voting on the bi-weekly Township payroll, you are
advised as follows.
You generally would have a conflict of interest in approving a Township payroll
that would include payment of compensation to an immediate family member such as
your husband. However, a conflict of interest would not exist with regard to the
approval of pre-fixed, routine, uncontested bills/obligations. See, Yezzi, Order 825 at 58;
Krushinski, Order 168; Maholick, Opinion 90-010; Brooks, Opinion 89-023.
Thus, subject to the conditions that: (1) you would abstain fully from participation
in matters pertaining to the determination of the compensation for your husband as a
Township employee; and (2) the compensation to be paid to your husband would be
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February 22, 2016
Page 5
pre-fixed, routine, and uncontested, and would not include any amounts that would not
be pre-fixed, routine, and uncontested, you would not have a conflict of interest with
regard to voting to approve payment of Township payroll that would include payment of
such compensation to your husband.
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 Kingston Township Home Rule Charter.
Conclusion:
Based upon the submitted facts that: (1) you are a newly-elected
Supervisor for Kingston Township (“Township”), located in Luzerne County,
Pennsylvania; (2) the Township Board of Supervisors consists of five Members; (3) your
husband is employed full-time with the Township Road Department (“Road
Department”); (4) Road Department employees receive a yearly boot allowance of
$200.00 and are provided with uniforms by the Township; (5) some Township
employees are paid a salary and other Township employees are paid an hourly rate; (6)
the Township does not reward individual Township employees for job performance, and
the Township annually gives Township employees an across-the-board pay raise of a
certain percentage; and (7) you and your family are covered by the Township health
insurance policy, you are advised as follows.
As a Township Supervisor, 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.
Your husband is a member of your “immediate family” as that term is defined in the
Ethics Act. 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 as a Township
Supervisor in matters that would financially impact you, a member of your immediate
family such as your husband, or a business with which you or a member of your
immediate family is associated.
You would not have a conflict of interest with regard to voting to approve the
yearly boot allowance of $200.00 for Road Department employees because the de
minimis exclusion set forth within the Ethics Act’s definition of the term "conflict" or
"conflict of interest," 65 Pa.C.S. § 1102, would be applicable as to such a vote.
With regard to the uniform allotments for Road Department employees, the
submitted facts do not indicate the cost of the uniforms or the number of uniforms
allotted for each Road Department employee. Additionally, the submitted facts are
insufficient to determine whether your husband is a member of a subclass of Township
Road Department employees who would be affected to the same degree by your
proposed vote(s) as to the uniform allotments and/or other matters.
Therefore, you are advised that unless the de minimis exclusion or the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable, you would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on: (1)
those portions of the annual Township budget that would financially impact your
husband; (2) annual pay raises for Township employees; (3) uniform allotments for
Road Department employees; (4) end of year bonuses; or (5) changes to Township-
provided health and life insurance benefits.
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
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February 22, 2016
Page 6
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
You generally would have a conflict of interest in approving a Township payroll
that would include payment of compensation to an immediate family member such as
your husband. However, a conflict of interest would not exist with regard to the
approval of pre-fixed, routine, uncontested bills/obligations. Subject to the conditions
that: (1) you would abstain fully from participation in matters pertaining to the
determination of the compensation for your husband as a Township employee; and (2)
the compensation to be paid to your husband would be pre-fixed, routine, and
uncontested, and would not include any amounts that would not be pre-fixed, routine,
and uncontested, you would not have a conflict of interest with regard to voting to
approve payment of Township payroll that would include payment of such
compensation to your husband. 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