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HomeMy WebLinkAbout18-508 RosePHONE: 717- 783 -1610 TOLL FREE: 1- 800- 332 -0536 To the Requester: Ms. Kimberly Rose Dear Ms. Rose: ADVICE OF COUNSEL February 27, 2018 FACSIMILE: 717- 787 -0806 WEBSITE: www.othics.pa.aov IM] is This responds to your letter dated January 2, 2018, 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 7577S. § 1101 et sec.., would impose prohibitions or restrictions upon an individual with regard to erfo_ — the duties of her public position as a Supervisor for Kingston Township Township "), Luzerne County, Pennsylvania, where: (1) the individual is the Treasurer of the Trucksville Volunteer EMS, Fire and Rescue Association; (2) the individual is the Treasurer of the Trucksville Volunteer Fireman's Relief Association; and (3) each entity for which the individual serves as Treasurer receives funds disbursed by the Township. Facts: You request an advisory from the Commission based upon submitted a�the material portion of which may be fairly summarized as follows. On January 2, 2018, you took office as a Township Supervisor. The Township is a home rule municipality. You are the Treasurer of the Trucksville Volunteer EMS, Fire and Rescue Association (the "Volunteer Fire Department "). The Volunteer Fire Department is a non - profit corporation that engages in fire and rescue - related activities in the Township. The Township annually disburses funds to the Volunteer Fire Department. You are also the Treasurer of the Trucksville Volunteer Fireman's Relief Association (the "Relief Association "). The Relief Association is a non- profit corporation that receives funds for the benefit of the Relief Association's qualified volunteer members. The Township annually disburses state funds to the Relief Association. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing the duties of your position as a Township Supervisor. Rose, 18 -508 FiTruary 27, 2018 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 disclosed 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 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), (j). 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 Rose, 18 -508 F�uary 27 2018 Page 3 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. 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 Iholding uc h 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. 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 1103{1) 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 applying the above provisions of the Ethics Act to the question presented, you are advised as follows. With respect to the Volunteer Fire Department, the threshold issue is whether the Volunteer Fire Department would be considered a part of the Township or a private entity separate from the Township. For purposes of the Ethics Act, depending upon the circumstances in a given case, a fire companyldepartment may be considered to be part of a governmental bodylpolitical subdivision or a private entity. Among the most significant factors in determining the status of a fire com any /department is the degree to which the fire company/department is funded an controlled 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 Volunteer Fire Department would be considered a Rase, 18 -508 t-ON ary 27, 2018 Page 4 private entity nd would not be considered a part of the Township. Therefore, you are aeneraliv advised as follows. If the Volunteer Fire Department would be considered a private entity and would not be considered a part of the Township, the Volunteer Fire Department would be a "business" as that term is defined by the Ethics Act, and the Volunteer Fire Department would be a business with which you are associated in your capacity as an officer (Treasurer). Accordingly, under such circumstances, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of Supervisors that would financially impact the Volunteer Fire Department. If the Volunteer Fire Department would not be considered a private entity and would be considered a part of the Township, absent a 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(x) of the Ethics Act in matter(s) before the Township Board of Supervisors that would financially impact the Volunteer Fire Department. You are further advised that under the submitted facts, the Relief Association is a business with which you are associated in your capacity as an officer (Treasurer). Accordingly, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of Supervisors that would financially impact the Relief Association. 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 Kingston Township Home Rule Charter. Conclusion: Based upon the submitted facts that: (1) on January 2, 2018, you took office as a Supervisor for Kingston Township "Township "), Luzerne County, Pennsylvania; (2 the Township is a home rule municipality; (3 you are the Treasurer of the Trucksville Volunteer EMS, Fire and Rescue Association (the "Volunteer Fire Department"); (4) the Volunteer Fire Department is a non - profit corporation that engages in fire and rescue - related activities in the Township; (5) the Township annually disburses funds to the Volunteer Fire Department; (6) you are also the Treasurer of the Trucksville Volunteer Fireman's Relief Association (the "Relief Association "); (7) the Relief Association is a non - profit corporation that receives funds for the benefit of the Relief Association's qualified volunteer members, and (8) the Township annually disburses state funds to the Relief Association, you are advised as follows. As a Township Supervisor, you area public official subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. With respect to the Volunteer Fire Department, the submitted facts are insufficient to enable a conclusive determination as to whether the Volunteer Fire Department would be considered a private entity and would not be considered a part of the Township. Therefore, you are generally advised as follows. If the Volunteer Fire Department would be considered a private entity and would not be considered a part of the Township, the Volunteer Fire Department would be a Rose, 18 -508 Zsrodary 27, 2018 Page 5 "business" as that term is defined by the Ethics Act, and the Volunteer Fire Department would be a business with which you are associated in your capacity as an officer (Treasurer). Accordingly, under such circumstances, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of Supervisors that would financially impact the Volunteer Fire Department. If the Volunteer Fire Department would not be considered a private entity and would be considered a part of the Township, absent a 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 in matter(s) before the Township Board of Supervisors that would financially impact the Volunteer Fire Department. You are further advised that under the submitted facts, the Relief Association is a business with which you are associated in your capacity as an officer (Treasurer). Accordingly, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of Supervisors that would financially impact the Relief Association. 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 writingg and must be actuall received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 73.2(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. ely, X.�4 v Robin M. Hittie Chief Counsel