HomeMy WebLinkAbout16-527 Confidential
ADVICE OF COUNSEL
May 4, 2016
16-527
This responds to your undated letter postmarked March 11, 2016, received
March 14, 2016, by which you requested a confidential 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 discussions, votes, or other actions of the
township board of supervisors pertaining to matters involving a company (“Company 1”)
that is developing a \[type of facility\] in the township, where: (1) in a private capacity, the
township supervisor is employed as an A with a B (“Company 2”) that is performing
work for Company 1 in relation to the aforesaid facility; and (2) the township
supervisor’s C is employed as a D with Company 1.
Facts:
You request a confidential advisory from the Commission based upon
submitted facts that may be fairly summarized as follows.
You are a Supervisor for \[name of township\] (“Township”), located in \[name of
county\], Pennsylvania. In a private capacity, you have worked for a B named \[name of
entity\] (“Company 2”) since \[month, year\]. You are currently employed as an A with
Company 2. You state that you do not have an ownership interest in Company 2.
In \[year\], a company named \[name of company\] (“Company 1”) applied for and
was granted preliminary/final land development approval for a \[type of facility\] (“the
Facility”) in the Township. You voted on the approval of Company 1’s land development
application at a time when Company 2 had no relationship with Company 1.
Company 1 has proceeded with the development of the Facility since land
development approval was secured. In or about the spring of \[year\], Company 2 began
doing work for Company 1. Since that time, Company 2 has continued to do work,
including primarily \[type of work\], for Company 1. Company 1’s project will be in the
\[type of phase\] for several years.
In or about \[month, year\], your C began working for Company 1. Your C is
currently employed as a D with Company 1. You state that your C does not have an
ownership interest in Company 1.
You state that in \[year\], you began recusing yourself from any and all formal
decisions and votes of the Township Board of Supervisors involving Company 1 due to
Company 2’s relationship with Company 1 and your C’s employment with Company 1.
Confidential Advice, 16-527
May 4, 2016
Page 2
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to participating
in discussions, votes, or other actions of the Township Board of Supervisors pertaining
to any matter(s) involving Company 1, including but not limited to \[certain matters\].
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, 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).
Confidential Advice, 16-527
May 4, 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.
"Immediate family."
A parent, spouse, child, brother
or sister.
"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.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting
conflict, Section 1103(j) of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
Confidential Advice, 16-527
May 4, 2016
Page 4
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
Having established the above general principles, you are advised as follows.
Your C is a member of your immediate family as that term is defined in the Ethics
Act. Company 1 is a business with which your C is associated in her capacity as an
employee. Company 2 is a business with which you are associated in your capacity as
an employee.
You would have a conflict of interest under Section 1103(a) of the Ethics Act as
to discussion(s), vote(s), and/or other action(s) of the Township Board of Supervisors
pertaining to matter(s) involving Company 1--including but not limited to \[certain
matters\]--if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family such as your C, Company 1, or Company 2; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3)
neither of the statutory exclusions to the definition of “conflict” or “conflict of interest” as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Cf. Kistler, supra.
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.
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:
Based upon the submitted facts that: (1) you are a Supervisor for
\[name of township\] (“Township”), located in \[name of county\], Pennsylvania; (2) in a
private capacity, you have worked for a B named \[name of entity\] (“Company 2”) since
\[month, year\]; (3) you are currently employed as an A with Company 2; (4) you do not
have an ownership interest in Company 2; (5) in \[year\], a company named \[name of
company\] (“Company 1”) applied for and was granted preliminary/final land
development approval for a \[type of facility\] (“the Facility”) in the Township; (6) you
voted on the approval of Company 1’s land development application at a time when
Company 2 had no relationship with Company 1; (7) Company 1 has proceeded with
the development of the Facility since land development approval was secured; (8) in or
about the spring of \[year\], Company 2 began doing work for Company 1, and since that
time, Company 2 has continued to do work, including primarily \[type of work\], for
Company 1; (9) Company 1’s project will be in the \[type of phase\] for several years; (10)
in or about \[month, year\], your C began working for Company 1; (11) your C is currently
Confidential Advice, 16-527
May 4, 2016
Page 5
employed as a D with Company 1; (12) your C does not have an ownership interest in
Company 1; and (13) in \[year\], you began recusing yourself from any and all formal
decisions and votes of the Township Board of Supervisors involving Company 1 due to
Company 2’s relationship with Company 1 and your C’s employment with Company 1,
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 C is a member of your immediate family as that term is defined in the Ethics Act.
Company 1 is a business with which your C is associated in her capacity as an
employee. Company 2 is a business with which you are associated in your capacity as
an employee.
You would have a conflict of interest under Section 1103(a) of the Ethics Act as
to discussion(s), vote(s), and/or other action(s) of the Township Board of Supervisors
pertaining to matter(s) involving Company 1--including but not limited to \[certain
matters\]--if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family such as your C, Company 1, or Company 2; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3)
neither of the statutory exclusions to the definition of “conflict” or “conflict of interest” as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. 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. 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