HomeMy WebLinkAbout17-525 FanelliSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO, BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
To the Requester:
Mr. Patrick J. Fanelli, Esquire
Fanelli Willett Law Offices
Dear Mr. Fanelli:
This responds to your
by which you requested an
( "Commission ").
April 20, 2017
17 -525
letters dated February 16, 2017, and February 27, 2017,
advisory from the Pennsylvania State Ethics Commission
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
a.
1r7S. § 1101 et se q., would impose prohibitions or restrictions upon a member and
chairman of a township board of supervisors, who is employed with a neighboring
municipality as a part --time police officer, with regard to participating in votes or other
actions of the township board of supervisors involving a contract with the neighboring
municipality for the provision of police services to the township; and whether the
restrictions of Section 1103(f) of the Ethics Act (pertaining to contracting) would be
applicable as to such a contract.
Facts: You have been authorized by Ray Benton ( "Mr. Benton ") to request an
aTv sory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Mr. Benton is a Member and Chairman of the Board of Supervisors ( "Board of
Supervisors ") of Greenfield Township ( "Township "), located in Blair County,
Pennsylvania. In addition to serving as a Township Supervisor, Mr. Benton is employed
with a neighboring municipality ( "the Municipality ") as a part -time police officer.
The Township maintains a Police Department that does not provide coverage
around the clock. When there are no Township police officers on duty, the
Pennsylvania State Police provides coverage as the primary police response in the
Township.
The Township Supervisors have recently considered whether to contract with a
nei ?hboring municipality for the provision of those police services ( "Police Services ")
tha are currently performed for the Township by the Pennsylvania State Police. The
Municipality is the closest neighboring municipality that might be able to provide Police
Services to the Township.
FAX: (717) 787 -0806 a Web Site: www.ethics.state.pa.us 0 e -mail: ethics Pstate. pa. us
Fanelli, 17 -525
April 20, 2017
Page 2
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions, restrictions, or obligations upon Mr. Benton in
relation to a Police Services contract between the Township and the Municipality. In
particular, you pose the following questions:
(1) Whether the Municipality would be considered a business with which Mr.
Benton is associated in his capacity as an employee (part -time police
officer);
(2) Whether Mr. Benton, in his capacity as a Township Supervisor, would be
prohibited from voting on a Palace Services contract with the Municipality;
(3) Whether the restrictions of Section 1 103(9 of the Ethics Act (pertaining to
contracting) would apply to a Police Services contract between the
Township and the Municipality; and
(4) Whether Mr. Benton, in his capacity as a part -time police officer for the
Municipality, would be prohibited from providing Police Services to the
Township under a Police Services contract between the Township and the
Municipality.
Discussion: It is initially noted that pursuant to Sections 1107('10) and 1107(19) of
e 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 discllosed 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 Member and Chairman of the Board of Supervisors, Mr. Benton is a public
official subject to the provisions of the Ethics Act.
Sections 1103(a) and 11030) 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.
0) 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
Fanelli, 17 -525
p0, 2017
Page 3
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), Q).
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"ConflicV 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.
"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.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
65 Pa.C.S. § 1102.
Fanelli, 17525
p210, 2017
Page 4
Pursuant to Section 1103(a) of the Ethics Act, 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 officiallpublic 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 11030) of
the Ethics Act would be applicable. Additionally, the disclosure requirements of Section
11030) of the Ethics Act would have to be satisfied in the event of a voting conflict.
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 11 03(a) of t e
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, suurra�, 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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. - -No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
Fanelli, 17 -525
p0, 2017
Page 5
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
open and ppublic process" be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also provides that the public official /public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
Having established the above general principles, you are advised as follows.
Since the Municipality is a "political subdivision" and not a "business" as those
terms are defined by the Ethics Act, the Municipality is not a business with which Mr.
Benton is associated in his capacity as an employee (part-time police officer).
Therefore, Mr. Benton would not have a conflict of interest under Section 1103(a) of the
Ethics Act in matters before the Board of Supervisors that would financially impact the
Municipality but that would not financially impact him, a member of his immediate family,
or a business with which he or a member of his immediate family is associated. A
pecuniary benefit flowing solely to a governmental entity such as the Municipality would
not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See,
Confidential Opinion, 01 -005; McCarrier /Anderson, Opinion 98 -008; Warso, Order 974.
Based upon the submitted facts, it cannot be conclusively determined whether a
Police Services contract between the Township and the Municipality would financially
impact Mr. Benton. If, for example, the Police Services contract between the Township
and the Municipality would result in additional work hours for Mr. Benton as a part-time
police officer -- regardless of where those hours would be worked- -such would constitute
a pecuniary benefit and could form the basis for a conflict of interest under Section
1103(x) of the Ethics Act if the Kistler criteria would be established and neither of the
statutory exclusions to the definitior�o "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
Therefore, you are advised that in his capacity as a Township Supervisor, Mr.
Benton would not have a conflict of interest under Section 1103(a) of the Ethics Act as
to vote(s) or other action(s) of the Township Board of Supervisors pertaining to a Police
Services contract with the Municipality unless: (1) he would be consciously aware of a
private pecuniary benefit for himself, a member of his immediate family, or a business
with which he or a member of his immediate family is associated; (2 ) his action(s) would
constitute one or more specific steps to attain that benefit; an (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.
As noted above, in each instance of a conflict of interest, Mr. Benton would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Section 1103(a) of the Ethics Act would not apply to Mr. Benton when acting in
his capacity as a part-time police officer for the Municipality because, in that capacity,
Mr. Benton would not be considered a "public official" or "public em lo ee" as the Ethics
Act and Commission Regulations define those terms. See, 65 Pa.C.S. §§ 1102,
1103(a); 51 Pa. Code § 11.1.
You are advised that since the Municipality is a not a business with which Mr.
Benton is associated, the restrictions and requirements of Section 1103(f) of the Ethics
Act would not apply as to a Police Services contract between the Township and the
Municipality.
Fanelli, 17 -525
Fp_FF20, 2017
Page 6
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability f 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) Ray Benton ( "Mr. Benton ")
is a em er and Chairman of the Board of Supervisors ( "Board of Supervisors") of
Greenfield Township ( "Township "), located in Blair County, Pennsylvania; (2) in addition
to serving as a Township Supervisor, Mr. Benton is employed with a neighboring
municipality ( "the Municipality ") as a part -time police officer (3}} the Township maintains
a Police Department that does not provide coverage around fhe clock; (4) when there
are no Township police officers on duty, the Pennsylvania State Police provides
coverage as the primary police response in the Township; (5) the Township Supervisors
have recently considered whether to contract with a neighboring municipality for the
provision of those police services ("Police Services ") that are currently performed for the
Township by the Pennsylvania State Police; and (6) the Municipality is the closest
neighboring municipality that might be able to provide Police Services to the Township,
you are advised as follows.
As a Member and Chairman of the Board of Supervisors, Mr. Benton is a public
official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics
Act " ), 65 Pa.C.S. § 1101 et seg. Since the Municipality is a "political subdivision" and
not a "business" as those terms are defined by the Ethics Act, the Municipalit is not a
business with which Mr. Benton is associated in his capacity as an employee part -time
police officer). Therefore, Mr. Benton would not have a conflict of interest under Section
1103(a) of the Ethics Act in matters before the Board of Supervisors that would
financially impact the Municipality but that would not financially impact him, a member of
his immediate family, or a business with which he or a member of his immediate family
is associated. A pecuniary benefit flowing solely to a governmental entity such as the
Municipality would not form the basis for a conflict of interest under Section 1103(a) of
the Ethics Act.
In his capacity as a Township Supervisor, Mr. Benton would not have a conflict of
interest under Section 1103(a) of the Ethics Act as to vote(s) or other action(s) of the
Township Board of Supervisors pertaining to a Police Services contract with the
Municipality unless: (1 ) he would be consciously aware of a private pecuniary benefit for
himself, a member of his immediate family, or a business with which he or a member of
his immediate family is associated; (2) his 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, Mr. Benton would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Section 1103(a) of the Ethics Act would not apply to Mr. Benton when acting in
his capacity as a part-time police officer for the Municipality because, in that capacity,
Mr. Benton would not be considered a "public official" or "public employee" as the Ethics
Act and Commission Regulations define those terms.
Since the Municipality is a not a business with which Mr. Benton is associated,
the restrictions and requirements of Section 1103(f) of the Ethics Act would not apply as
to a Police Services contract between the Township and the Municipality.
Fanelli, 17 -525
April 20, 2017
Page 7
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 writingg and must be actuall
received at the Commission within thirty (30) days of the date
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,
VvIi�} t
Robin M. Hittie
Chief Counsel