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HomeMy WebLinkAbout16-521 Avolio ADVICE OF COUNSEL March 31, 2016 Scott E. Avolio, Esquire Avolio Law Group, LLC. 117 N. Main Street Greensburg, PA 15601 16-521 Dear Mr. Avolio: This responds to your letter dated February 15, 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 township supervisor, who is the fire chief and president of one of twelve recognized volunteer fire departments that provide fire protection services for the township, with regard to voting on: (1) the current reimbursement of costs and fees to the recognized volunteer fire departments; (2) the proposed consolidation of the recognized volunteer fire departments to form a new township fire bureau; or (3) the acquisition of the assets of the recognized volunteer fire departments and the assumption of debt associated with such assets as part of the transition to a township fire bureau. Facts: You request an advisory from the Commission on behalf of George C. Reese (“Mr. Reese”). You have submitted facts, the material portion of which may be fairly summarized as follows. On December 23, 2015, Mr. Reese was appointed to the Board of Supervisors of the Township of Hempfield (“Township”), located in Westmoreland County, Pennsylvania. The Township Board of Supervisors consists of five Members. The Carbon Volunteer Fire Department and Relief Association Hose Company No. 1 (“Carbon Volunteer Fire Department”) is one of twelve recognized volunteer fire departments in the Township (the “Recognized Volunteer Fire Departments”) that provide fire protection services for the Township. By agreement and pursuant to the Second Class Township Code, the Township provides financial support to the Recognized Volunteer Fire Departments. Mr. Reese is the Fire Chief and President of the Carbon Volunteer Fire Department. The Carbon Volunteer Fire Department is a non-profit corporation. You have submitted a copy of the By-laws of the Carbon Volunteer Fire Department, which document is incorporated herein by reference. Avolio, 16-521 March 31, 2016 Page 2 In his capacity as the Fire Chief of the Carbon Volunteer Fire Department, Mr. Reese is entitled to the use of a Fire Chief vehicle (the “Fire Chief Vehicle”) that is equipped with sirens and lights. Mr. Reese utilizes the Fire Chief Vehicle at all times so that he is ready to travel to any emergency calls. The Carbon Volunteer Fire Department pays the costs for fuel, tires, maintenance, and insurance for the Fire Chief Vehicle. In calendar year 2015, the overall costs for fuel, tires, maintenance and insurance for the Fire Chief Vehicle totaled less than $1,500. The Carbon Volunteer Fire Department may utilize the funds provided to it by the Township to pay the expenses incurred to provide fuel and maintenance for the Fire Chief Vehicle. The Township Board of Supervisors has expressed a desire to consolidate the Recognized Volunteer Fire Departments to form the Hempfield Township Bureau of Fire (the “Township Fire Bureau”), which would provide fire protection services within the Township. The Township would provide the administrative support and funding necessary to maintain the Township Fire Bureau with supervisory control vested in appointed agents of the Township. In order to effectuate the transition to the Township Fire Bureau, the Township intends to acquire the real and personal property currently owned by the Recognized Volunteer Fire Departments and assume the debt associated with such property. Based upon the above submitted facts, you pose the following questions: (1) Whether Mr. Reese would be permitted to vote on the current reimbursement of costs and fees to the Recognized Volunteer Fire Departments, including the Carbon Volunteer Fire Department; (2) Whether Mr. Reese would be permitted to vote on the proposed consolidation of the Recognized Volunteer Fire Departments to form a new Township Fire Bureau; and (3) Whether Mr. Reese would be permitted to vote on the acquisition of the assets of the Recognized Volunteer Fire Departments, including the Carbon Volunteer Fire Department, and the assumption of debt associated with such assets as part of the transition to a Township Fire Bureau. 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. 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. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Township Supervisor, Mr. Reese is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: Avolio, 16-521 March 31, 2016 Page 3 § 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. "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. Avolio, 16-521 March 31, 2016 Page 4 "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. 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 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. Avolio, 16-521 March 31, 2016 Page 5 In addressing the questions presented, the threshold issue is whether the Carbon Volunteer Fire Department would be considered a part of the Township or a private entity separate from the Township. For purposes of the Ethics Act, depending upon the circumstances in a given case, a fire company/department 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/department is the degree to which the fire company/department 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—at this time—the Carbon Volunteer Fire Department 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 Carbon Volunteer Fire Department would be considered a private entity and would not be considered a part of the Township, the Carbon Volunteer Fire Department would be a “business” as that term is defined by the Ethics Act, and the Carbon Volunteer Fire Department would be a business with which Mr. Reese is associated in his capacities as the Fire Chief and President. Accordingly, under such circumstances, 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, Mr. Reese would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting as a Township Supervisor on matter(s) that would financially impact the Carbon Volunteer Fire Department, including but not limited to: (1) the current reimbursement of costs and fees to the Carbon Volunteer Fire Department; (2) the proposed consolidation of the Recognized Volunteer Fire Departments to form a new Township Fire Bureau; or (3) the acquisition of the assets of the Carbon Volunteer Fire Department and the assumption of debt associated with such assets as part of the transition to a Township Fire Bureau. In each instance of a conflict of interest, Mr. Reese 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 Carbon Volunteer Fire Department 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 Mr. Reese, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Reese would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting as a Township Supervisor on: (1) the current reimbursement of costs and fees to the Carbon Volunteer Fire Department; (2) the proposed consolidation of the Recognized Volunteer Fire Departments to form a new Township Fire Bureau; or (3) the acquisition of the assets of the Carbon Volunteer Fire Department and the assumption of debt associated with such assets as part of the transition to a Township Fire Bureau. 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. Avolio, 16-521 March 31, 2016 Page 6 Conclusion: Based upon the submitted facts that: (1) on December 23, 2015, George C. Reese (“Mr. Reese”) was appointed to the Board of Supervisors of the Township of Hempfield (“Township”), located in Westmoreland County, Pennsylvania; (2) the Township Board of Supervisors consists of five Members; (3) the Carbon Volunteer Fire Department and Relief Association Hose Company No. 1 (“Carbon Volunteer Fire Department”) is one of twelve recognized volunteer fire departments in the Township (the “Recognized Volunteer Fire Departments”) that provide fire protection services for the Township: (4) by agreement and pursuant to the Second Class Township Code, the Township provides financial support to the Recognized Volunteer Fire Departments; (5) Mr. Reese is the Fire Chief and President of the Carbon Volunteer Fire Department; (6) the Carbon Volunteer Fire Department is a non-profit corporation; (7) in his capacity as the Fire Chief of the Carbon Volunteer Fire Department, Mr. Reese is entitled to the use of a Fire Chief vehicle (the “Fire Chief Vehicle”) that is equipped with sirens and lights; (8) Mr. Reese utilizes the Fire Chief Vehicle at all times so that he is ready to travel to any emergency calls; (9) the Carbon Volunteer Fire Department pays the costs for fuel, tires, maintenance, and insurance for the Fire Chief Vehicle; (10) in calendar year 2015, the overall costs for fuel, tires, maintenance and insurance for the Fire Chief Vehicle totaled less than $1,500; (11) the Carbon Volunteer Fire Department may utilize the funds provided to it by the Township to pay the expenses incurred to provide fuel and maintenance for the Fire Chief Vehicle; (12) the Township Board of Supervisors has expressed a desire to consolidate the Recognized Volunteer Fire Departments to form the Hempfield Township Bureau of Fire (the “Township Fire Bureau”), which would provide fire protection services within the Township; (13) the Township would provide the administrative support and funding necessary to maintain the Township Fire Bureau with supervisory control vested in appointed agents of the Township; and (14) in order to effectuate the transition to the Township Fire Bureau, the Township intends to acquire the real and personal property currently owned by the Recognized Volunteer Fire Departments and assume the debt associated with such property, you are advised as follows. As a Township Supervisor, Mr. Reese 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. The submitted facts are insufficient to enable a conclusive determination as to whether—at this time—the Carbon Volunteer Fire Department 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 Carbon Volunteer Fire Department would be considered a private entity and would not be considered a part of the Township, the Carbon Volunteer Fire Department would be a “business” as that term is defined by the Ethics Act, and the Carbon Volunteer Fire Department would be a business with which Mr. Reese is associated in his capacities as the Fire Chief and President. Accordingly, under such circumstances, 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, Mr. Reese would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting as a Township Supervisor on matter(s) that would financially impact the Carbon Volunteer Fire Department, including but not limited to: (1) the current reimbursement of costs and fees to the Carbon Volunteer Fire Department; (2) the proposed consolidation of the Recognized Volunteer Fire Departments to form a new Township Fire Bureau; or (3) the acquisition of the assets of the Carbon Volunteer Fire Department and the assumption of debt associated with such assets as part of the transition to a Township Fire Bureau. In each instance of a conflict of interest, Mr. Reese 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. Avolio, 16-521 March 31, 2016 Page 7 If the Carbon Volunteer Fire Department 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 Mr. Reese, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Reese would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting as a Township Supervisor on: (1) the current reimbursement of costs and fees to the Carbon Volunteer Fire Department; (2) the proposed consolidation of the Recognized Volunteer Fire Departments to form a new Township Fire Bureau; or (3) the acquisition of the assets of the Carbon Volunteer Fire Department and the assumption of debt associated with such assets as part of the transition to a Township Fire Bureau. 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