HomeMy WebLinkAbout17-565 GoodleyL LLfI
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1630
1- 800- 932 -0936
ADVICE OF COUNSEL
September 18, 2017
To the Requester:
Mr. Samuel A. Goodley, Jr., Esquire
Byler, Goodley & Winkle, P.C.
17 -565
Dear Mr. Goodley:
This responds to your letter dated August 16, 2017, 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
Tra77S. § 1101 et se q., would impose prohibitions or restrictions upon an individual
serving as a township supervisor with regard to voting on the appointment and
compensation of the township solicitor and other matters related to the financial
interests of the township solicitor, if the individual, in his private capacity as an attorney,
would sublease office space from the law firm of which the current township solicitor is a
member.
Facts: You request' an advisory from the Commission based upon submitted
facts hat may be fairly summarized as follows.
You are a Supervisor for East Nottingham Township ( "Township "), located in
Chester County, Pennsylvania. You are seeking reelection as a Township upervisor in
the November 2017 general election.
In a private capacity, you are an attorney licensed to practice law . in
Pennsylvania. You have a law office located in Intercourse, Pennsylvania. You intend
to relocate your law office to Oxford, Pennsylvania, in the near future in order to shorten
your commute and expand the physical size of your office.
BB &T Bank (the "Bank ") owns a building (the "Building ") located in Oxford,
Pennsylvania. Approximately one -half of the Building s currently teased and occu ed
by the Caw firm of McMichael, Heiney, Sebastian Law LLC (the "MHS Law Firm'). The
MHS Law Firm previously negotiated with the Bank the option to sublease unused office
space at an agreed -upon rent. You are considering subleasing unused office space
from the MHS Law Firm at the rent previously agreed upon by the MHS Law Firm and
the Bank. The subleasing arrangement would be the only connection between your law
firm and the MHS Law Firm.
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsPstate.pa.us
Go�odley, 17 -565
September 18, 2017
Page 2
Winifred Sebastian, Esquire, who is a Member of the MHS Law Firm, is currently
the Township Solicitor.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon ou with regard to voting on the
appointment and compensation of the Township Solicitor and other matters related to
the financial interests of the Township Solicitor if you would sublease office space in the
Building from the MHS Law Firm.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) 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 disc osed all of the material facts.
As a Township Supervisor, you are 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
pprovided 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), (j).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
Go�odl�e +, 17 -565
September 18, 2017
Page 3
§ 1102. 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
he 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.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting
cow Section 11030) of the Ethics Act would require the public official /public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
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 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, 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.
Goadle , 17 -565
September 18, 2017
Page 4
Having established the above general principles, you are advised as follows.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics
Act would impose restrictions upon you in your capacity as a public official, rather than
upon you in your private capacity. Therefore, Section 1103(a) would not prohibit you, in
your private capacity as an attorney, from subleasing office space in the Building from
the MHS Law Firm.
In your public capacity as a Township Supervisor, you would have a conflict of
interest and would violate Section 1103(a) of the Ethics Act by voting on the
appointment or compensation of the Township Solicitor or other matter(s) that would
financially impact the Township Solicitor if: (1) you would be consciously aware of a
private pecuniary benefit for yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated; (2) your action(s)
would constitute one or more specific steps to attain that benefit; (3) neither the de
minimis exclusion nor the class /subclass exclusion set forth within the Ethics Act's
definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. 1102, would be
applicable; and (4) your voting would not fall within a statutory exception under Section
1103@ of the Ethics Act.
As noted above, in each instance of a conflict of interest, you 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.
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.
Conclusion: Based upon the submitted facts that: (1) you are a Supervisor for
gh
East ottinam Township ('Township "), located- in Chester County, Pennsylvania; (2)
you are seeking reelection as a Township Supervisor in the November 2017 general
election; (3) in a private capacity, you are an attorney licensed to practice law in
Pennsylvania; (4). you have a law office located in Intercourse, Pennsylvania; (5) you
intend to relocate your law office to Oxford, Pennsylvania, in the near future in order to
shorten your commute and expand the physical size of your office; (6) BB &T Bank (the
"Bank ") owns a building (the "Building ") located in Oxford, Pennsylvania; (7)
approximately one -half of the Building is currently leased and occupied by the law firm
off McMichael, Heine, Sebastian Law LLC (the "MHS Law Firm "); (8) the MHS Law
Firm previously negotiated with the Bank the option to sublease unused office space at
an agreed -upon rent; (9) you are considering subleasing unused office space from the
MHS Law Firm at the rent previously agreed upon by the MHS Law Firm and the Bank;
(10 ) the subleasing arrangement would be the only connection between our law firm
and the MHS Law Firm; and (11) Winifred Sebastian, Esquire, who is a Member of the
MHS Law Firm, is currently the Township Solicitor, you are advised as follows.
As a Township Supervisor, you are a ublic official subject to the provisions of
the Public Official and Employee Ethics Act "Ethics Act " }, 65 Pa.C.S. § 1101 et sec .
Section 1103(a of the Ethics Act, pertaining to conflict of interest, imposes restrictions
upon public officials and public employees. Section 1103(a) of the Ethics Act would
impose restrictions upon you in your capacity as a public official, rather than upon you in
your private capacity. Therefore, Section 1103(a) would not prohibit you, in your private
capacity as an attorney, from subleasing office space in the Building from the MHS Law
Firm.
Goodle , 17 -565
eS ptem0er 18, 2017
Page 5
In your public capacity as a Township Supervisor, you would have a conflict of
interest and would violate Section 1103(a) of the Ethics Act by voting on the
appointment or compensation of the Township Solicitor or other matters) that would
financially impact the Township Solicitor if: (1) you would be consciously aware of a
private pecuniary benefit for yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated; (2) your action(s)
would constitute one or more specific steps to attain that benefit; (3) neither the de
minimis exclusion nor the class /subclass exclusion set forth within the Ethics Act's
definition of the term "conflict" or "conflict of interest," 66 Pa.C.S. § 1102, would be
applicable; and (4) your voting would not fall within a statutory exception under Section
1103@ of the Ethics Act.
In each instance of a conflict of interest, you 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. 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 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 (71 -787-080 Failure to
file such an appeal at the Commission within thirty {30) days may
result in the dismissal of the appeal.
Sincerely,
J
d 1
obin M. Hittie
Chief Counsel