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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
December 13, 2018
To the Requester:
Mr. Michael B. Kaleugher, Esquire
Dear Mr. Kaleugher:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
18574
This responds to your letter dated November 6, 2018 (postmarked November 9,
2018, received November 13, 2018), by which you requested an advisory from the
Pennsylvania State Ethics Commission ('Commission").
Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee
E ics Act ( "Ethics Act'), 65 Pa:C.S. § 1103(a), an individual serving as both: f a
Member of the Board of Commissioners of Collier Township ( "Township "); and (2� a
Member and Vice - Chairman of the Board of the Collier Township Municipal Authority
( "Municipal Authority "), would have a conflict of interest in either of his aforesaid
capacities with regard to voting on an agreement to transfer the ownership and
operation of certain sanitary sewer lines from the Township to the Municipal Authority.
Facts: You have been authorized by Richard Ruffennach ( "Mr.
Ruffe nnach ") to request an advisory from the Commission on his behalf. You have
submitted facts that may be fairly summarized as follows.
The Township created the Municipal Authority for the purposes of owning,
installing, and maintaining a sanitary sewer conveyance system (the "Sewer System )
within the Township. The Township appoints the Members of the Board of the
Municipal Authority.
In approximately 1995, a private developer (the "Developer ") purchased property
in the Township and asserted ownership rights to certain sanitary sewer capacity within
the Sewer System. Because of a disagreement among all of the parties Involved, the
Township entered Into agreements with the Developer to construct the sanitary sewer
lines (the "Sewer Lines ") for the Developer's commercial /residential development. The
Sewer Lines connect Into the regional treatment authority, ALCOSAN, which has
discharge agreements with the Township and the Municipal Authority.
In October 2013, Mr. Ruffennach was appointed to the Municipal Authority
Board, and he currently serves as Vice - Chairman of the Municipal Authority Board. On
January 1, 2018, Mr. Ruffennach began serving as a Member of the Township Board of
Commissioners.
The Township Board of Commissioners proposes to transfer the ownership and
operation of the Sewer Lines to the Municipal Authority without consideration. The
Kale u her, 18 -574
Me ember 13, 2018
Page 2
Township is currently involved in litigation related to the Sewer Lines that was filed by
an environmental agency. Although the litigation may ultimately be resolved by
agreements entered into by various entities, it is anticipated that the litigation will not be
resolved as of the date proposed for the transfer of the ownership and operation of the
Sewer Lines.
Based upon the above submitted facts, you ask whether Mr. Ruffennach, in his
capacity as a Member of the Township Board of Commissioners or in his capacity as a
Member and Vice- Chairman of the Municipal Authority Board, would be permitted to
vote on an agreement that would transfer the ownership and operation of the Sewer
Lines from the Township to the Municipal Authority.
Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. y§§ 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. §§ 110700 , (11). An advisory only affords a
defense to the extent the requester has truthfully disc osed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As a Member of the Township Board of Commissioners and as a Member and
Vice - Chairman of the Municipal Authority Board, Mr. Ruffennach is a public official
subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103Q) 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
Kafeu her, 18 -574
December 13, 2018
Page 3
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 industryry, 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.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
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 officiallpublic employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
Kateeu he_r, 18 -574
ecp ember 13, 2018
Page 4
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 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.
In ap Igg the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Mr. Ruffennach would not have a conflict of interest under Section 1103(a) of the
Ethics Act either in his capacity as a Member of the Township Board of Commissioners
or in his capacity as a Member and Vice - Chairman of the Municipal Authority Board in
matter(s) that would financially impact the Township or the Municipal Authority but that
would not financially impact him, a member of his immediate family, or a business with
which he or a member of his immediate family is associated. A pecuniary benefit
flowing solely to a governmental entity - -such as the Township or the Municipal
Authority - -would not form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act. See, Confidential Opinion, 01 -005; McCarrier /Anderson, Opinion 98 -008;
Warso, Order 974.
Therefore, as to each of Mr. Ruffennach's public capacities- -that is, as a Member
of the Township Board of Commissioners or as a Member and Vice - Chairman of the
Municipal Authority Board -- absent some basis for a conflict of interest such as a private
pecuniary benefit for Mr. Ruffennach, a member of his immediate family, or a business
with which he or a member of his immediate family is associated, Mr. Ruffennach would
not have a conflict of interest with regard to voting on an agreement that would transfer
the ownership and operation of the Sewer Lines from the Township to the Municipal
Authority.
The proprietyy 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 First Class Township Code or the Municipality Authorities Act.
Conclusion: Based upon the submitted facts that: (1) Collier Township
("Township") created the Collier Township Municipal Authority ( "Municipal Authority ") for
the purposes of owning, installing, and maintaining a sanitary sewer conveyance
system (the "Sewer System ") within the Township, (2) the Township appoints the
Members of the Board of the Municipal Authority; (3) in approximately 1995, a private
developer (the "Developer ") purchased property in the Township and asserted
ownership rights to certain sanitary sewer capacity within the Sewer System; (4)
because of a disagreement among all of the parties involved, the Township entered into
agreements with the Developer to construct the sanitary sewer lines (the "Sewer Lines ")
for the Developer's commercial /residential development; (5) the Sewer Lines connect
into the regional treatment authority, ALCOSAN, which has discharge agreements with
the Township and the Municipal Authority; (6) in October 2013, Richard Ruffennach
( "Mr. Ruffennach ") was appointed to the Municipal Authority Board, and he currently
serves as Vice - Chairman of the Municipal Authority Board; (7) on January 1, 2018, Mr.
Ruffennach began serving as a Member of the Township Board of Commissioners; (8)
the Township Board of Commissioners proposes to transfer the ownershi and
operation of the Sewer Lines to the Municipal Authority without consideration; �9) the
Township is currently involved in litigation related to the Sewer Lines that was filed by
an environmental agency; and (10) although the litigation may ultimately be resolved by
Kaleugher, 18 -574
ecD ember 13, 2018
Page 5
agreements entered into by various entities, it is anticipated that the litigation will not be
resolved as of the date proposed for the transfer of the ownership and operation of the
Sewer Lines, you are advised as follows.
As a Member of the Township Board of Commissioners and as a Member and
Vice - Chairman of the Municipal Authority Board, Mr. Ruffennach is a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seg.
Mr. Ruffennach would not have a conflict of interest under Section 1103(a) of the
Ethics Act either in his capacity as a Member of the Township Board of Commissioners
or in his capacity as a Member and Vice - Chairman of the Municipal Authority Board in
matter(s) that would financially impact the Township or the Municipal Authority but that
would not financially impact him, a member of his immediate family, or a business with
which he or a member of his immediate family is associated. A pecuniary benefit
flowing solely to a governmental entity - -such as the Township or the Municipal
Authority - -would not form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act. Therefore, as to each of Mr. Ruffennach's public capacities -.that is, as a
Member of the Township Board of Commissioners or as a Member and Vice- Chairman
of the Municipal Authority Board -- absent some basis for a conflict of interest such as a
private pecuniary benefit for Mr. Ruffennach, a member of his immediate family, or a
business with which he or a member of his immediate family is associated, Mr.
Ruffennach would not have a conflict of interest with regard to voting on an agreement
that would transfer the ownership and operation of the Sewer Lines from the Township
to the Municipal Authority.
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 actual)
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
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel