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HomeMy WebLinkAbout17-528 Confidentialz- STATE ETHICS COMMISSION 309 FINANCE BUILDING PO, BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 -932 -0936 ADVICE OF COUNSEL April 28, 2017 To the Requester: 17 -528 This responds to your letter dated March 21, 2017, 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 ACS. § 1101 et se ., would impose prohibitions or restrictions upon an A for name of political subdivisionn(('the Political Subdivision "), who serves on the B of the [name of volunteer fire company] ("the Fire Company, with regard to voting on matter(s) involving the type or C of a D that the Political Subdivision would E on an F that the Political Subdivision would G from the Fire Company on an H. Facts: You have been authorized by Individual I to request a confidential advisory r�the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Individual I is an A for the Political Subdivision. The Political Subdivision J consists of three Members. Individual I is a K of the Fire Company. Individual I fills [number] seats on the Fire Company's B in his capacities as [certain capacities]. The Political Subdivision intends to G from the Fire Company an F [in a certain location]. The Political Subdivision would E a D on the F. The Political Subdivision would GG the F on an H, and the L would address [certain matters]. The Fire Company would have M on the type of D that the Political Subdivision would E on the F. The L may provide the Political Subdivision As with authority over matter(s) involving the C of the proposed D, including [certain matters]. Individual I has expressed his understanding that he cannot participate in any discussions or votes on any [type of issues]. Based upon the above submitted facts, you ask whether the Ethics Act would permit Individual I to vote on matter(s) involving the type or C of the D that the Political Subdivision would E on the F, and in particular, whether Individual 1 would be permitted to vote to break a tie vote as to such matter(s). PAX: (717) 787 -0806 a Web Site: www.ethics.state.pa.us 0 e -mail: ethicsPstate.pa,us Confidential Advice, 17 -528 April 28, 2017 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) 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 disc osed 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 our inquiry relates to conduct that has already occurred, such past conduct may no 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 Political Subdivision A, Individual I is a public official subject to the provisions of the Ethics Act. Sections 1 103(x) 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 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 bod of a political subdivision, where one member has abs ained 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), 0). The following terms are defined in the Ethics Act as follows: § 1102. Definitions Confidential Advice, 17 -528 Aril 28, 2017- 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. "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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public officelemployment 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 off iciallpublic 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 1103(a) of the Ethics Act, a public officiallpublic 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. Confidential Advice, 17 -528 April 28, 2017 Page 4 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. In addressing the questions presented, the threshold issue is whether the Fire Company would be considered a part of the Political Subdivision or a private entity separate from the Political Subdivision. 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 comppanyldepartment 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 the Fire Company would be considered a private entity and would not be considered a part of the Political Subdivision. Therefore, you are generally advised as follows. If the Fire Company would be considered a private entity and would not be considered a part of the Political Subdivision, the Fire Company would be a "business" as that term is defined by the Ethics Act, and the Fire Company would be a business with which Individual I is associated in his capacities as [certain capacities]. Accordingly, under such circumstances, Individual I would have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Political Subdivision J on matter(s) involving the type or C of the D that the Political Subdivision would E on the F if: (1) he would be consciously aware of a private pecuniary enefit for the Fire Company; (2) his action(s) would constitute one or more speck 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. If the Fire Company would not be considered a private entity and would be considered a part of the Political Subdivision, absent a basis for a conflict of interest such as a private pecuniary benefit to Individual I, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Individual I would not have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Political Subdivision J on matter(s) involving the type or C of the D that the Political Subdivision would E on the F. Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, Individual I 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 11030 of the Ethics Act. See, Garner, Opinion 93 -004; Pavlovic, Opinion 02 -005. Because the Political Subdivisions consists of three Members, Section 11030) would permit Individual I to vote to break a tie if the other two Political Subdivision As would cast opposing votes on a matter in which he would have a conflict of interest, provided that he would initially: (1) abstain from the vote: and (2) fully satisfv the disclosure reauirements ofi Section 1103(i) ot the Ethics Act. However, in voting to oreaK a tie vote, inaiviauai i couia not otnerwise use authority of office, such as by advocating his 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 Confidential Advice, 17 -528 April 8, 2017 Page 5 interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the N. Conclusion: Based u on the submitted facts that: (1) Individual I is an A for name of subdivision ( "the Political Subdivision "); (2) the Political Subdivision J consists of three Members; ( ) Individual I is a K of the [name of volunteer fire company] ( "the Fire Company "); (4) Individual I fills [_number] seats on the Fire Company's B in his capacities as [certain capacities]; (5 the Political Subdivision intends to G from the Fire Company an F [in a certain location ; (6) the Political Subdivision would E a D on the F; (7) the Political Subdivision would the F on an H, and the L would address certain matters]; (8) the Fire Company would have final M on the type of D that the Political Subdivision would E on the F; (9) the L may provide the Political Subdivision As with author it over matters) involving the C of the proposed D, including [certain matters]; and (10 Individual I has expressed his understanding that he cannot participate in any discussions or votes on any [type of issues], you are advised as follows. . As a Political Subdivision A, Individual I is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sue. The submitted facts are insufficient to enable a conclusive determination as to whether the Fire Company would be considered a private entity and would not be considered a part of the Political Subdivision. Therefore, you are generally advised as follows. If the Fire Company would be. considered a private entity and would not be considered a part of the Political Subdivision, the Fire Company would be a "business" as that term is defined by the Ethics Act, and the Fire Company would be a business with which Individual l is associated in his capacities as [certain capacities]. Accordingly, under such circumstances, Individual I would have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Political Subdivision J on matter(s) involving the type or C of the D that the Political Subdivision would E on the F if: (1) he would be consciously aware of a private pecuniary benefit for the Fire Company; (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. If the Fire Company would not be considered a private entity and would be considered a part of the Political Subdivision, absent a basis for a conflict of interest such as a private pecuniary benefit to Individual I, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Individual I would not have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Political Subdivision J on matter(s) involving the type or C of the D that the Political Subdivision would E on the F. Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, Individual I 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 11030) of the Ethics Act. Because the Political Subdivision J consists of three Members, Section 11030) would permit Individual I to vote to break a tie if the other two Political Subdivision As would cast opposing votes on a matter in which he would have a conflict of interest, provided that he would initiallv: (1) abstain from the vote; and (2) fully satisfy th-disclosure re uirements of Section 11 U3 of the Ethics Act. However, in voting to breaK a tie vote, Individual I could not otherwise use t e aut ority of office, such as by advocating his view, in the matter. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Advice, 17 -528 April 28, 2017 Page 6 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 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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, l f V Robin M. Hittie Chief Counsel