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HomeMy WebLinkAbout17-543 Confidentialt i l- S :o.' STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0935 ADVICE OF COUNSEL July 6, 2017 To the Requester: 17 -543 This responds to your letter dated May 5, 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 Pa. -S. § 1101 et sec.., would impose prohibitions or restrictions upon an individual serving as an A for name of political subdivision] ( "the Political Subdivision ") with regard to voting on matter(s) involving the type or B of a C that the Political Subdivision would D on an E that the Political Subdivision would F from the [name of volunteer fire company] ( "the Fire Company ") on a G, if the individual would join the Fire Company as an H Facts: You have been authorized by Individual I to request a confidential advisory from the Commission on her 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. The Political Subdivision intends to F from the Fire Company an E [in a certain location]. The Political Subdivision would D a C on the E. The Political Subdivision would F the E on G, and the K would address [certain matters]. The Fire Company would have L on the type of C that the Political Subdivision would D on the E. The K may provide the Political Subdivision As with authority over matter(s) involving the B of the proposed C, including [certain matters]. Individual I is interested in Dining the Fire Company as an H. If Individual I would join the Fire Company, she would be a [type of H] but would not be an M of the Fire Company or an N. Individual l has expressed her understanding that she could not participate in any discussions or votes on any [type of issues] if she would join the Fire Company. Based upon the above submitted facts, -you pose the following questions: (1) Whether, if Individual I would join the Fire Company as an H, the Ethics Act would impose prohibitions or restrictions upon Individual I with regard FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics0state.pa.us Confidential Advice, 17 -543 July 6, 2017 Page 2 to voting on matter(s) involving the type or B of the C that the Political Subdivision would D on the E; and (2) If Individual I would have a conflict of interest under the Ethics Act as to such matter(s), whether Individual 1 would be permitted to break a tie vote as to such matter(s). 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 trut fully 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 ma 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 Political Subdivision A, Individual I 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 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. Confidential Advice, 17 -543 July 6, 2017 Page 3 65 Pa.C.S. §§ 1103 (a), 0). The following terms are defined in the Ethics Act as follows: § 1142. Definitions "Conflict" or "conflict of interest." Use by a public official or public employyee 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 wit h business in which the immediate family is a has a financial interest. 65 Pa:C.S. §'1'102. which he is associated." Any person or a member of the erson's director, officer, owner, employee or Subject to the statutory exclusions to the Ethics Act's definition of the term conflict or conflict of interest, 65 Pa.C.S. §'1'102, a public official/public employee is prohibited from using the authority of public office /employment or confidential information received b 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 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. Having established the above general principles, your specific questions shall now be addressed. Confidential Advice, 17 -543 July 6, 2017 Page 4 In response to your first question, you are advised as follows. Based upon the submitted facts, if Individual I would join the Fire Company as an H, the Fire Company would not be a business with which Individual I is associated because she would not be a director, officer, owner, employee, or holder of a financial interest in the Fire Company. Since the Fire Company would not be a business with which Individual I is associated, Individual I would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Political Subdivision J that would financially impact the Fire Company but that would not financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Therefore, absent some basis for a conflict of interest such as a private pecuniary benefit to Individual 1, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit Individual I from votin on matter(s) involving the type or B of the C that the Political Subdivision would Don the E. In light of the above, it is not necessary to determine whether the Fire Company would be considered a "business" as that term is defined in the Ethics Act. With regard to your second question, you are advised as follows. Subject to the voting conflict exceptions of Section 1103(j) 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, 0 1 ion 93 -004; Pavlovic, Opinion 02 -005. Because the Political Subdivision--J consists ofpthree Members, Section 11030) would permit Individual 1 to vote to break a tie if the other two Political Subdivision As would cast opposing votes on a matter in which she would have a conflict of interest, provided that she would initially: (1) abstain from the vote; and 2) full satisfy the disclosure requirements - of Section 1103(i) of the Ethics Act. However, in voting to break a tie vote, IndividuaT I could not otherwise use the authority of office, such as by advocating her 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 O. Conclusion: Based upon the submitted facts that: 1) Individual I is an A for m nae o political subdivision] Political Subdivision "); (2) the Political Subdivision J consists of three Members; (3) the Political Subdivision intends to F from [name of volunteer fire company] ( "the Fire Company ") an E in a certain location]; (4) the Political Subdivision would D a C on the E; (5 the Political Subdivision would F the E on G, and tter s the K would address [certain ma; (fi the Fire Company would have L on the type of C that the Political Subdivision would D on the E; (7) the K may provide the Political Subdivision As with authority over matter(s) involving the B of the proposed C, including {certain matters]; (8) Individual I is interested in joining the Fire Company as an H; (9) if individual I would join the Fire Company, she would be a [type of H] but would not be an M of the Fire Company or an N; and (10) Individual I has expressed her understanding that she could not participate in any discussions or votes on any [type of issues] if she would join the Fire Company, 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 seq. Based upon the submitted facts, if Individual I would Join the Fire Company as an H, the Fire Company would not be a business with which Individual I is Confidential Advice, 17 -543 July 6 2017 Page � associated because she would not be a director, officer, owner, employee, or holder of a financial interest in the Fire Company. Since the Fire Company would not be a business with which Individual I is associated, Individual I would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Political Subdivision J that would financially impact the Fire Company but that would not financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Therefore, absent some basis for a conflict of interest such as a private pecuniary benefit to Individual 1, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit Individual I from voting on matter(s) involving the type or B of the C that the Political Subdivision would D on the E. Subject to the voting conflict .exceptions of Section 1 1030) of the Ethics Act, Individual ( 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 she would have a conflict of interest, provided that she would initially: 1 abstain from the vote; and 2 fully satisfv the disclosure re uirements of ection 1103 ot the Ethics Act. However, in voting to break a tie vote, Individual I could not otherwise use the authority of office, such as by advocating her 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 actuall received at the Commission within thirty (30) days of the date o�7is vice 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. Sincer ly, rl X1,bin M. Hittie Chief Counsel