HomeMy WebLinkAbout18-545 LivelsbergerPHONE: 717 -783 -1610
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ADVICE OF COUNSEL
July 13, 2018
To the Requester:
Ms. Marie Livelsberger
Dear Ms. Livelsberger:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
18 -545
This responds to your letter dated June 25, 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
Fra.TS. § 1101 et she , would impose prohibitions or restrictions upon a member and
officer of a township board of supervisors, who is an administrative member and a
trusteelchair of the trustees of a volunteer fire company, with regard to participating in
discussions or votes of the township board of supervisors pertaining to matters involving
the volunteer fire company.
Facts: You request an advisory from the Commission based upon submitted
facts hat may be fairly summarized as follows.
You are a Member and Vice Chairperson of the board of supervisors ( "Board of
Supervisors ") of a township ( "Township "). You are also the Township Treasurer.
You are an administrative member of a volunteer fire company (the "Volunteer
Fire Company "), and you are a Trustee /Chair of the Trustees of the Volunteer Fire
Company. You do not hold signature authority over any of the Volunteer Fire
Company's bank accounts.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to participating in discussions or
votes of the Township Board of Supervisors pertaining to matters involving the
Volunteer Fire Company.
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
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July y 13, 8
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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 Member and Vice Chairperson of the Township Board of Supervisors, you
are a public official subject to the provisions of the Ethics Act. As the Township
Treasurer, you are a public official /public employee 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), Q).
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 industry, occupation or
other group which includes the public official or public
L l 3, 2018 -545
July Page 3 2��11
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." An 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 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.
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 110300 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 ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
With respect to the Volunteer Fire Company, the threshold issue is whether the
Volunteer Fire Company 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
body /political subdivision or a private entity. Among the most significant factors in
determining the status of a fire company/department is the degree to which the fire
company/department is funded and controlled by the governmental bodylpolitical
subdivision, or alternatively raises its own funds and governs itself.
In the instant matter, the submitted facts are insufficient to enable a
determination as to whether the Volunteer Fire Company would be considered a private
entity and would not be considered a part of the Township. Therefore, you are
generally advised as follows.
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Page 4
If the Volunteer Fire Company would be considered a private entity and would
not be considered a art of the Township, the Volunteer Fire Company. would be a
"business" as that term is defined by the Ethics Act, and the Volunteer Fire Company
would be a business with which you are associated in your capacity as a Trustee /Chair
of the Trustees. Accordingly, under such circumstances, you generally would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in
discussion s) or vote(s) of the Township Board of Supervisors pertaining to matter(s)
that would financially impact the Volunteer Fire Company.
If the Volunteer Fire Company 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 with regard to
pparticipating in discussion(s) or vote(s) of the Township Board of Supervisors pertaining
to matters) that would financially impact the Volunteer Fire Company.
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 Member and
Vice Chair—person of the board of supervisors ( "Board of Supervisors ") of a township
( "Township "); (2) you are also the Township Treasurer; (3) you are an administrative
member of a volunteer fire company (the 'Volunteer Fire Compan "), and you are a
Trustee /Chair of the Trustees of the Volunteer Fire Company; and (y4) you do not hold
signature authority over any of the Volunteer Fire Company�s bank accounts, you are
advised as follows.
As a Member and Vice Chairperson of the Township Board of Supervisors, you
are a public official subject to the provisions of the Public Official and Employee Ethics
Act ( "Ethics Act "), 55 Pa.C.S. § 1101 et seg. As the Township Treasurer, you are a
public official /public employee subject to the provisions of the Ethics Act.
With respect to the Volunteer Fire Company, the submitted facts are insufficient
to enable a determination as to whether the Volunteer Fire Company 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 Company would be considered a private entity and would
not be considered a part of the Township, the Volunteer Fire Company would be a
"business" as that ter is defined by the Ethics Act, and the Volunteer Fire Company
would be a business with which you are associated in your capacity as a Trustee /Chiar
of the Trustees. Accordingly, under such circumstances, you generally would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in
discussion(s) or vote(s) of the Township Board of Supervisors pertaining to matter(s)
that would financially impact the Volunteer Fire Company.
If the Volunteer Fire Company 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
Lu yl13, 201818 -545
Page 5 2�
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 with regard to
participating in discussion(s) or vote(s) of the Township Board of Supervisors pertaining
to matter(s) that would financially impact the Volunteer Fire Company.
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 act�uall
received of 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 (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,
Z 2
k- ((74
Robin M. Hittie
Chief Counsel