HomeMy WebLinkAbout18-512 AsteakPHONE: 717 -783 -1610
TOIL FREE: 1- 800- 932 -0936
ADVICE OF COUNSEL
March 9, 2018
To the Requester:
Mr. Gary Neil Asteak, Esquire
Dear Mr. Asteak:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
18 -512
This responds to your letter dated January 15, 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
P_a.TS. § 1101 et seq., would impose prohibitions or restrictions upon .a township
supervisor, whose husband is employed as a patrolman with a regional police
department that was formed by the township and two other municipalities, with regard
to: (1) participating in discussions or votes of the township board of supervisors
pertaining to a new intergovernmental cooperation agreement that would continue the
operation of the regional police department if one of the two other municipalities would
withdraw from the current intergovernmental cooperation agreement; (2) participating in
discussions or votes of the township board of supervisors pertaining to township
budgets that would contain funding for the regional police department or other police -
related matters; or (3) being appointed to serve as the township's representative or as
the township's alternate on the board of the regional police department.
Facts: As Solicitor for Lower Nazareth Township ( "Township "), you have been
auTiorized by Amy L. Templeton ("Ms. Templeton ") to request an advisory from the
Commission on her behalf. You have submitted facts that may be fairly summarized as
follows.
Ms. Templeton is a newly-elected Township Supervisor. Ms. Templeton's
husband is employed as a patrolman with the Colonial Regional Police Department
( "CRPD "), which was formed by the Township and two other municipalities (`the Two
Municipalities ") pursuant to the Intergovernmental Cooperation Act, 53 Pa.C.S. § 2301
et se q. The Township Board of Supervisors ( "Board of Supervisors ") appoints one of its
Members to sit on the CRPD Board, which supervises and manages the CRPD and
performs executive and administrative functions with regard to the CRPD.
The Township and one of the Two Municipalities jointly own the building that
houses the CRPD. The Township annually approves the CRPD budget by approving
Asteak, 18 -512
M–a—rc t�9, 2018
Page 2
the Township budget that contains a line item for CRPD funding. The CRPD employs a
total of twenty -five police officers, including Ms. Templeton s husband. The CRPD
handles its own internal budgetary process, negotiates and executes a collective
bargaining agreement with its employees, and handles disciplinary/human resources
issues involving its employees. Ms. Templeton's husband is a member of the collective
bargaining unit for the CRPD's employees.
One of the Two Municipalities is seeking to withdraw from the current
Intergovernmental Cooperation Agreement that established the CRPD, and the
Township is negotiating a new Intergovernmental Cooperation Agreement with the other
of the Two Municipalities in order to continue the operation of the CRPD. You state that
a new Intergovernmental Cooperation Agreement for the CRPD would not involve
layoffs or a reduction in staffing and that the issues of financial contributions and the
formula to establish such contributions have not yet been resolved.
Based upon the above submitted facts, you pose the following questions:
(1) Whether Ms. Templeton would be permitted to participate in discussions —
in executive session or in public ---or votes pertaining to a new
Intergovernmental Cooperation Agreement for the CRPD;
(2) Whether Ms. Templeton would be permitted to participate in discussions —
in executive session or in public —or votes pertaining to Township budgets
that would contain funding for the CRPD or other police- related matters;
and
(3) Whether Ms. Templeton would be permitted to be appointed by the Board
of Supervisors to serve as the Township's representative or as the
Township's alternate on the CRPD Board.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
tie ts 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, Ms. Templeton 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.
U) 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
Asteak, 18 -512
101a—r-EF9, 2018
Page 3
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), 0).
The following terms related to Section 1103(x) 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
he 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 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
Asteak, 18 -512
1 all�rcF9, 2018
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.
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 1103, of the Ethics Act would require the public official/public
employee to abstain an 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 I TUT(aTo-Ft-he
Ethics Act, —a public officiallpublic 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 officiallpublic 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.
A conflict of interest would not exist to the extent the "de minimis exclusion"
and/or 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.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class /subclass exclusion to apply, two criteria must be met: (1)
the affected public official /public employee, immediate family member, or business with
which the public official /public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official /public employee or
immediate family member is associated must be affected "to the same de ree" (m no
way differently) than the other members of the class /subclass. 65 Pa.C.S. 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01 -007. The first criterion of the
exc usion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual /business in question and the other members
of the class /subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, you are advised as follows.
Asteak, 18 -512
March 9, 2418
Page 5
Ms. Templeton's husband is a member of her "immediate family" as that term is
defined in the Ethics Act.
You are advised that Ms. Templeton would have a conflict of interest and would
violate Section 1103(x) of the Ethics Act by participating in discussion(s)— whether in
executive session or in public —or vote(s) of the Board of Supervisors pertaining to a
new Intergovernmental Cooperation Agreement for the CRPD, the particular line item
on the annual Township budget that would provide funding for the CRPD, or other
E matter(s) if: (1) she would be consciously aware of a private pecuniary
benefit for herself or her husband; (2) her action(s) would constitute one or more
specific steps to attain that benefit; and (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. Cf. Kistler, supra.
You are further advised that the Ethics Act would not prohibit Ms. Templeton
from being appointed by the Board of Supervisors to serve as the Township's
representative or as the Township's alternate on the CRPD Board. If Ms. Templeton
would be appointed to serve on the CRPD Board in either of the aforesaid capacities,
she would in such capacity be a public official subject to the provisions of the Ethics Act,
and subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, Ms. Templeton would have a
conflict of interest in matter(s) before the CRPD Board that would financially impact her
or her husband /her husband's employment with the CRPD.
As noted above, in each instance of a conflict of interest, Ms. Templeton 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 or the Intergovernmental Cooperation Act.
Conclusion: Based upon the submitted facts that: (1) Amy L. Templeton ( "Ms.
emT Teton 7 is a newly - elected Supervisor for Lower Nazareth Township ('Township");
(2) Ms. Templeton's husband is employed as a patrolman with the Colonial Regional
Police Department ( "CRPD "), which was formed by the Township and two other
municipalities ( "the Two Municipalities ") pursuant to the Intergovernmental Cooperation
Act, 53 Pa.C.S. § 2301 et sew.; (3) the Township Board of Supervisors ( "Board of
Supervisors ") appoints one of its Members to sit on the CRPD Board, which supervises
and manages the CRPD and performs executive and administrative functions with
regard to the CRPD; (4) the Township and one of the Two Municipalities jointly own the
building that houses the CRPD; (5) the Township annually approves the CRPD budget
by approving the Township budget that contains a line item for CRPD funding; (6) the
CRPD employs a total of twenty -five police officers, including Ms. Templeton's husband;
(7) the CRPD handles its own internal budgetary process, negotiates and executes a
collective bargaining agreement with its employees, and handles disciplinary /human
resources issues involvin its empplo ees; gRPD's Ms. Templeton's husband is a member of
the collective bargaining unit forythe employees; (9) one of the Two
Municipalities is seek' n, to withdraw from the current Intergovernmental Cooperation
Agreement that established the CRPD, and the Township is negotiating i new
Intergovernmental Cooperation Agreement with the other of the Two Municipalities in
order to continue the operation of the CRPD; and (10} a new Intergovernmental
Asteak 18 -512
Marcf9, 2018
Page 6
Cooperation Agreement for the CRPD would not involve layoffs or a reduction in
staffing, and the issues of financial contributions and the formula to establish such
contributions have not yet been resolved, you are advised as follows.
As a Township Supervisor, Ms. Templeton 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. Ms. Templeton's husband is a member of her "immediate family" as that
term is defined in the Ethics Act.
Ms. Templeton would have a conflict of interest and would violate Section
1103(a) of the Ethics Act by participating in discussion(s)— whether in executive session
or in public —or vote(s) of the Board of Supervisors pertaining to a new
Intergovernmental Cooperation Agreement for the CRPD, the particular line item on the
annual Township budget that would provide funding for the CRPD, or other police -
related matter(s) if: (1) she would be consciously aware of a private pecuniary benefit
for herself or her husband; (2) her action(s) would constitute one or more specific steps
to attain that benefit; and (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.
The Ethics Act would not prohibit Ms. Templeton from being appointed by the
Board of Supervisors to serve as the Township's representative or as the Township's
alternate on the CRPD Board. If Ms. Templeton would be appointed to serve on the
CRPD Board in either of the aforesaid capacities, she would in such capacity be a
public official subject to the provisions of the Ethics Act, and subject to the statutory
exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics
Act, 65 Pa.C.S. § 1102, Ms. Templeton would have a conflict of interest in matter (s)
before the CRPD Board that would financially impact her or her husband /her husband's
employment with the CRPD.
In each instance of a conflict of interest, Ms. Templeton 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 thir73.2(h). (30) days of the date o is
Advice pursuant to 51 Pa. Code § The appeal may be
Asteak, 18 -512
arc 9, 2018
Page 7
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.
Sincerely,
r
F
Robin M. Hittie
Chief Counsel