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HomeMy WebLinkAbout16-559 Butler ADVICE OF COUNSEL September 15, 2016 Lester L. Butler, Jr. 15 Aiden Lane Jefferson Township, PA 18436 16-559 Dear Mr. Butler: This responds to your letter dated July 29, 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 chairman of a three-member township board of supervisors, who is employed by a municipal authority, with regard to: (1) seconding a motion to appoint an individual to fill a vacancy on the municipal authority board, where the other two township supervisors would have opposing views; or (2) voting on a motion to appoint such individual to fill the vacancy on the municipal authority board, where the other two township supervisors would cast opposing votes. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are a Member and Chairman of the Board of Supervisors of Jefferson Township (“Township”), located in Lackawanna County, Pennsylvania. The Township Board of Supervisors consists of three Members. In addition to serving as a Township Supervisor, you are employed with the Jefferson Township Sewer Authority (“Authority”). You state that the Township Board of Supervisors makes appointments to the Authority Board and that you have abstained from voting on such appointments in the past. There is currently a vacancy on the Authority Board. The other two Township Supervisors might not agree on an appointment to the Authority Board. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would permit you to second a motion to appoint an individual to fill the vacancy on the Authority Board, where the other two Township Supervisors would have opposing views, and then vote to break a tie if the other two Township Supervisors would cast opposing votes. Butler, 16-559 September 15, 2016 Page 2 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 Member and Chairman of the Township Board of Supervisors, 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 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 Butler, 16-559 September 15, 2016 Page 3 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. 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. Per State Ethics Commission precedent, a public official/public employee generally would have a conflict of interest in matters pertaining to a person who, in a different capacity, has authority or control over the public official/public employee. See, Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). Having established the above general principles, you are advised as follows. In your capacity as a Member and Chairman of the Township Board of Supervisors, you would have a conflict of interest with regard to nominating and/or voting to appoint/reappoint Member(s) of the Authority Board due to your status as an Authority employee. Cf., Barbin¸ Advice 16-509; Schrempf, Advice 05-529; Kynett, Advice 03-512; Welsh, Advice 02-537; Tobin, Advice 00-502. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. The exception for breaking a tie vote despite a conflict is available exclusively to members of three-member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Bloss, Order 869; Garner, Opinion 93-004; Pavlovic, Opinion 02-005. In Garner, supra, the Commission considered the issue of whether, under Section 1103(j) of the Ethics Act, a township supervisor serving on a three member Butler, 16-559 September 15, 2016 Page 4 board would be permitted to second a motion despite a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, supra, the Commission first noted that seconding a motion is a use of authority of office. See, Garner, supra. The Commission then stated: However, the General Assembly in enacting Section \[1103(j)\] would not have allowed a public official/employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section \[1103(j)\] of the Ethics Law operative, the General Assembly intended as to three members \[sic\] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, Opinion 93-004 at 6. The Commission concluded that Section 1103(j) of the Ethics Act would allow a township supervisor serving on a three-member board to second a motion where the two remaining supervisors would have opposing views or where one of the other two supervisors would be absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In applying Garner to the instant matter, you are advised as follows. Because the Township Board of Supervisors consists of three members, you would be permitted to second a motion to appoint an individual to fill a vacancy on the Authority Board where the other two Township Supervisors would have opposing views. Allowing you to second the motion under such circumstances would put the matter in a posture for a vote. As long as you would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j), you would then be permitted to vote to break the tie if the other two Township Supervisors would cast opposing votes. However, you could not otherwise use the authority of office, such as by advocating your view, in the matter. 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 or the Municipality Authorities Act. Conclusion: As a Member and Chairman of the Board of Supervisors of Jefferson Township (“Township”), located in Lackawanna 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. Based upon the submitted facts that: (1) the Township Board of Supervisors consists of three Members; (2) in addition to serving as a Township Supervisor, you are employed with the Jefferson Township Sewer Authority (“Authority”); (3) the Township Board of Supervisors makes appointments to the Authority Board, and you have abstained from voting on such appointments in the past; (4) there is currently a vacancy on the Authority Board; and (5) the other two Township Supervisors might not agree on an appointment to the Authority Board, you are advised as follows. In your capacity as a Member and Chairman of the Township Board of Supervisors, you would have a conflict of interest with regard to nominating and/or Butler, 16-559 September 15, 2016 Page 5 voting to appoint/reappoint Member(s) of the Authority Board due to your status as an Authority employee. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from participation in each instance of a conflict of interest. Because the Township Board of Supervisors consists of three members, you would be permitted to second a motion to appoint an individual to fill a vacancy on the Authority Board where the other two Township Supervisors would have opposing views. Allowing you to second the motion under such circumstances would put the matter in a posture for a vote. As long as you would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j), you would then be permitted to vote to break the tie if the other two Township Supervisors would cast opposing votes. However, you could not otherwise use the authority of office, such as by advocating your view, in the matter. 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