HomeMy WebLinkAbout17-538 BraunSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 4703
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
June 20, 2017
To the Requester:
Mr. Russell J. Braun
Dear Mr. Braun:
`ta. * %3
This responds to your letter dated April 25, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee
EMcs Act ( "Ethics Act'), 65 Pa.C.S. § 1103(a), an individual serving as both: (1) a
Member and Chairman of the Board of Directors of the Elk County Conservation District
( "Conservation District "); and (2) a Member of the Quality Assurance Board of the
onservation District, would have a conflict of interest in either of his aforesaid
capacities with regard to applications from .Jones Township for funding for road projects
pursuant to a dirt and gravel road program administered by the Conservation District,
where the individual is employed as a Sewage Enforcement Officer and Code
Enforcement Officer for Jones Township.
Facts: You request an advisory from the Commission based upon submitted
acts hat may be fairly summarized as follows.
You are employed full -time as a Sewage Enforcement Officer and Code
Enforcement Officer for Jones Township ( "Township "), located in Elk County,
Pennsylvania. You are also employed part--time as a Sewage Enforcement Officer for
several other municipalities in Elk County. You were appointed to each of your various
employment positions by the governing body of the respective municipality.
You are a Member and Chairman of the Board of Directors ( "Board ") of the
Conservation District. You are also a Member of the Quality Assurance Board ( "QAB ")
of the Conservation District.
The Conservation District administers a dirt and gravel road program (the "Dirt
and Gravel Road Program "), which provides funding to participating municipalities to
repair and improve dirt and gravel roadways. The QAB reviews each application for
funding for road projects pursuant to the Dirt and Gravel Road Program and ranks and
prioritizes each application. Based upon the recommendations of the QAB, the
Conservation District Board votes to approve or disapprove funding for the various road
projects.
FAX: (717) 787 -0806 0 Web Site: www. ethics. state. pa. us 0 e -mail: ethicsPstate.pa.us
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You state that your Job duties as a Sewage Enforcement Officer and Code
Enforcement Officer for the Township do not include any road - related work. You do not
participate in the writing of any applications for Dirt and Gravel Road Program funding
that are submitted to the Conservafion District by the Township.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would have a conflict of interest in your capacity as a
Member of the QAB with regard to making recommendations on
applications from the Township for funding for road projects pursuant to
the Dirt and Gravel Road Program; and
(2) Whether you would have a conflict of interest in your capacity as a
Member and Chairman of the Conservation District Board with regard to
voting to approve or disapprove funding for Township road projects
pursuant to the Dirt and Gravel Road Program.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. y§§ 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.
As a Member and Chairman of the Conservation District Board and as a Member
of the QAB, you are a public official subject to the provisions of the Ethics Act. As a
Sewage Enforcement Officer and Code Enforcement Officer for the Township, you are a
public official/public employee 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.
(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
Braun, 17 -538
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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 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.
"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.
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
Braun, 17 -538
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Page 4
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 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.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Since the Township is a "political subdivision" and not a "business" as defined by
the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the
Ethics Act in matters before the Conservation District Board or the QAB that would
financially impact the Township but that would not financially impact you, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated. A pecuniary benefit flowing solely to a governmental entity such as
the Township 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.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family, or a business with which you or a member of
Sour immediate family is associated, you would not have a conflict of interest under
ection 1103(a) of the Ethics Act: (1) in your capacity as a Member of the QAB with
regard to making recommendations on applications from the Township for funding for
road projects pursuant to the Dirt and Gravel Road Program; or (2) in your capacity as a
Member and Chairman of the Conservation District Board with regard to voting to
approve or disapprove funding for Township road projects pursuant to the Dirt and
Gravel Road Program.
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.
Conclusion: Based upon the submitted facts that: (1) you are employed full -time
as a ewage Enforcement Officer and Code Enforcement Officer for Jones Township
( "Township ), located in Elk County, Pennsylvania; (2) you are also employed part -time
as a Sewage Enforcement Officer for several other municipalities in Elk County; (3) you
were appointed to each of your various employment positions by the governing body of
the respective municipality; (4) you are a Member and Chairman of the Board of
Directors ( "Board ") of the Elk County Conservation District °Conservation District "); (5)
you are also a Member of the Quality Assurance Board ('QAB") of the Conservation
District; (6) the Conservation District administers a dirt and gravel road program (the
"Dirt and Gravel Road Program "), which provides funding to participating municipalities
to repair and improve dirt and gravel roadways; (7) the QAB reviews each application
for funding for road projects pursuant to the Dirt and Gravel Road Program and ranks
and prioritizes each application; (8) based upon the recommendations of the QAB, the
Conservation District Board votes to approve or disapprove funding for the various road
projects; (9) your job duties as a Sewage Enforcement Officer and Code Enforcement
Off11cer for the Township do not include any road - related work; and (10) you do not
Braun, 17 -535
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Page 5
participate in the writing of any applications for Dirt and Gravel Road Program funding
that are submitted to the Conservation District by the Township, you are advised as
follows.
As a Member and Chairman of the Conservation District Board and as a Member
of the QAB, 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. As a Sewage
Enfrcment Officer and Code Enforcement Officer for the Township, you are a public
official /public employee subject to the provisions of the Ethics Act. Since the Township
is a "political subdivision" and not a "business" as defined by the Ethics Act, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), in matters before the Conservation District Board or the QAB that would
financially impact the Township but that would not financially impact you, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated. A pecuniary benefit flowing solely to a governmental entity such as
the Township would not form the basis for a conflict of interest under Section 1103(a) of
the Ethics Act. Absent some basis for a conflict of interest such as a private pecuniary
benefit to you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated, you would not have a conflict of interest
under Section 1103(a) of the Ethics Act: (1) in your capacity as a Member of the QAB
with regard to making recommendations on applications from the Township for funding
for road projects pursuant to the Dirt and Gravel Road Program; or (2) in your capacity
as a Member and Chairman of the Conservation District Board with regard to voting to
approve or disapprove funding for Township road projects pursuant to the Dirt and
Gravel Road Program. 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 actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 59 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.
Sinc ly,
L
obin M. Hittie
Chief Counsel