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HomeMy WebLinkAbout16-517 Karasek ADVICE OF COUNSEL March 8, 2016 Ronold J. Karasek, Esquire Karasek Law Offices, LLC 641 Market Street Bangor, PA 18013 16-517 Dear Mr. Karasek: This responds to your letters dated January 12, 2016, and February 5, 2016, 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 chairperson of a five-member township board of supervisors with regard to performing the duties of his public position if his father would be appointed to a paid position with the township by the other four members of the township board of supervisors. Facts: As Solicitor for the Township of Upper Mount Bethel (“Township”), located in Northampton County, Pennsylvania, you have been authorized by John A. Bermingham, Jr., Esquire (“Mr. Bermingham”) to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Bermingham is a Member and Chairperson of the Township Board of Supervisors (“Board of Supervisors”). The Board of Supervisors consists of five Members. The Township is in the process of determining whether to continue with the position of Township Manager or move forward with a full-time or part-time office manager or consultant. You state that Mr. Bermingham’s father has the qualifications and work experience needed to fill the aforesaid positions. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon Mr. Bermingham with regard to performing the duties of his position as a Member and Chairperson of the Board of Supervisors if his father would be appointed to a paid position with the Township by the other four Members of 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 Karasek, 16-517 March 8, 2016 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. This Advice is limited to addressing the narrow question posed as to future conduct. As a Member and Chairperson of the Board of Supervisors, Mr. Bermingham 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 are defined in the Ethics Act as follows: § 1102. Definitions Karasek, 16-517 March 8, 2016 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. Mr. Bermingham’s father is a member of his “immediate family” as that term is defined in the Ethics Act. If Mr. Bermingham’s father would be appointed to a paid position with the Township by the other four Members of the Board of Supervisors, then Mr. Bermingham would generally have a conflict of interest in matter(s) before the Board of Supervisors that would financially impact his father and/or his father’s position with the Township. As noted above, in each instance of a conflict of interest, Mr. Bermingham 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. Karasek, 16-517 March 8, 2016 Page 4 This Advice is limited to addressing the narrow question posed as to future conduct. 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 Chairperson of the Board of Supervisors of the Township of Upper Mount Bethel (“Township”), located in Northampton County, Pennsylvania, John A. Bermingham, Jr., Esquire (“Mr. Bermingham”) 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. Based upon the submitted facts that: (1) the Township Board of Supervisors consists of five Members; (2) the Township is in the process of determining whether to continue with the position of Township Manager or move forward with a full- time or part-time office manager or consultant; and (3) Mr. Bermingham’s father has the qualifications and work experience needed to fill the aforesaid positions, you are advised as follows. Mr. Bermingham’s father is a member of his “immediate family” as that term is defined in the Ethics Act. If Mr. Bermingham’s father would be appointed to a paid position with the Township by the other four Members of the Township Board of Supervisors, then Mr. Bermingham would generally have a conflict of interest in matter(s) before the Township Board of Supervisors that would financially impact his father and/or his father’s position with the Township. In each instance of a conflict of interest, Mr. Bermingham 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