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HomeMy WebLinkAbout18-506 TiraPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 26, 2018 To the Requester: Mr. Ryan M. Tira, Esquire McNerney, Page, Vanderlin & Hall Dear Mr. Tira: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.oa.aov 18-506 This responds to your letter dated December 20, 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 P—a—TS. § 1101 et seg., would impose prohibitions or restrictions upon an individual with regard to performing the duties of his newly -elected position as a township auditor, where: (1) the individual's father is a su ervisor for the township; (2) the individual's father is not employed by the township; (3Me township board of supervisors appoints a certified public accountant to perform the annual audit of the township accounts; and 4) the duties of the elected township auditors are limited to setting the compensation or township supervisors who are employed by the township and the discretionary auditing of the records of the magisterial district judge to determine the amount of fines and costs paid over or due to the township. Facts: You have been authorized by Tristan Scott ("Mr. Scott") to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Scott was recently elected as an Auditor for Mahoning Township ("Township"), Montour County, Pennsylvania, for a term of office beginning on January 2, 2018. The Township is governed by a five -Member Board of Supervisors. Pursuant to Section 65917(b) of the Second Class Township Code, 53 P.S. § 65917(b), the Township Board of Supervisors appoints a certified public accountant to perform the annual audit of the Township accounts. Under Section 65917(c) of the Second Class Township Code, 53 P.S. § 65917(c), when a certified public accountant is appointed by the Township Board of Supervisors to perform the annual audit, the elected Township Auditors shall not audit, settle, or adjust the Township accounts but shall perform the other duties of the office of Township Auditor. You state that the duties of the elected Township Auditors are limited to setting the compensation for Township Supervisors Tira, 18-506 FeTruary 26, 2018 Page 2 who are employed by the Township and the discretionary auditing of the records of the magisterial district judge to determine the amount of fines and costs paid over or due to the Township. In November 2017, Mr. Scott's father, T.S. Scott, was reelected as a Township Supervisor. Although at some point in time Mr. Scott's father was approved to work as a Township roadmaster, he has not performed any duties for the Township as a roadmaster or received any compensation as a roadmaster. You state that Mr. Scott's father is not a Township employee and that he will not accept employment with the Township or be appointed as a roadmaster for 2018. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Scott with regard to performing the duties of his position as a Township Auditor. 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 truthfully discllosed all of the material facts. As a Township Auditor, Mr. Scott 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 bod of a political subdivision, where one member has absained 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 Tira, 18-506 February 26, 2018 Page 3 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 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 Industrryy, 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Acts 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 %holding such a public position for the private pecuniary benefit of the public officiallpic empoyee 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 officiallpublic 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 fora articular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting co— ill ct, 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 Pennsyylvania 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 o t e Ethics Act, a public official/public employee: Tira, 18-506 February 26, 2018 Page 4 ... 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. § 1103(b), (c), provide in part that no person shalloffer or give to a public official/pubic employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Having established the above general principles, you are advised as follows. Mr. Scott's father is a member of his "immediate family" as that term is defined in the Ethics Act. Mr. Scott would not have a conflict of interest under Section 1103(a) of the Ethics Act as to discussion(s), vote(s), and/or other official action(s) of the Township Board of Auditors unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family such as his father, 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. Scott 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) Tristan Scott ("Mr. Scott") was recently elected as an Auditor for Mahoning Township ("Township'), Montour County, Pennsylvania, for a term of office beginning on January 2, 2018; the Townshi is ggoverned by a five -Member Board of Supervisors; (3) pursuant to �2) ection 65917(b) of the Second Class Township Code, 53 P.S. § 65917(b), the Township Board of Su ervisors appoints a certified public accountant to perform thhe annual audit of the Townshi accounts, (4) under Section 65917(c) of the Second Class Township Code, 53 P.S. § 65917(c), when the Township Board of Supervisors appoints a certified public accountant to perform the annual audit, the elected Township Auditors shall not audit, settle, or adjust the Township accounts but shall perform the other duties of the office of Township Auditor; (5) the duties of the elected Township Auditors are limited to setting the compensation for Township Supervisors who are employed by the Township and Tira, 18-506 February 26, 2018 Page 5 the discretionary auditing of the records of the magisterial district judge to determine the amount of fines and costs paid over or due to the Township; (6) in November 2017, Mr. Scott's father, T.S. Scott, was reelected as a Township Supervisor; (7) although at some point in time Mr. Scott's father was approved to work as a Township roadmaster, he has not performed any duties for the Township as a roadmaster or received any conppensation as a roadmaster; and (8) Mr. Scott's father is not a Township employee, and he will not accept employment with the Township or be appointed as a roadmaster for 2018, you are advised as follows. As a Township Auditor, Mr. Scott is a public official subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act"), 65 Pa.C.S. § 1101 et sew. Mr. Scott's father is a member of his "immediate family" as that term is definedin the Ethics Act. Mr. Scott would not have a conflict of interest under Section 1103(a) of the Ethics Act as to discussion(s), vote(s), and/or other official action(s) of the Township Board of Auditors unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family such as his father, 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. Scott 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 writingg and must be actuallLf received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § f3.2(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. Sincerel , obin M. Hittie Chief Counsel