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HomeMy WebLinkAbout18-577 EppleyPHONE: 717 -783 -1610 TOLL FREE: 1- 800- 932 -0936 To the Requester: Mr. Daryl A. Eppley Dear Mr. Eppley: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL December 28, 2018 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.12a.gov 18 -577 This responds to your letter dated November 30, 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 Pa:C'S. § 1101 et seq., would permit an individual serving as both: (1) a member and chairman of a township board of supervisors; and (2) the township secretary/treasurer, to resign from the township board of supervisors and be appointed as the township manager; and If so, whether the individual would be permitted to simultaneously serve as the township manager and the township secretary/treasurer. Facts: You request an advisory from the Commission based upon the following submitted facts. You are a Member and Chairman of the Board of Supervisors of Stroud Township ( "Township "), located in Monroe County, Pennsylvania. You are employed as the Township Secre ary/Treasurer, and you also serve as the appointed Open Records Officer. You state that the other two Township Supervisors are contemplating hiring a Township Manager and want to consider you as a candidate for that position. The narrow question that is posed by your advisory request is whether the Ethics Act would permit you to resign from the Township Board of Supervisors and be appointed as the Township Manager, and if so, whether you would be permitted to simultaneously serve as the Township Manager and the Township Secretary/Treasurer. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics �lct, 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. Eppley 18 -577 Decel ber 28, 2018 Page 2 It is further initially noted that this Advice is limited to addressing the narrow question posed. As a Member and Chairman of the Township Board of Supervisors, you are a public official subject to the provisions of the Ethics Act. As the Township Secretary /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), (j). 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 b 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 11030) of the Ethics Act would be applicable. Epple 18 -577 December 28, 2018 Page 3 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 instant matter, you are advised that the Ethics Act would not prohibit you from resigning from the Township Board of Supervisors and being appointed as the Township Manager. If you would be appointed as the Township Manager, you would in that capacity be a public official /public employee subject to the provisions of the Ethics Act. With regard to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. It is further noted that Section 66301(c) of the Second Class Township Code provides as follows: § 66301. Township manager; appointment, removal, powers and duties; compensation; bond (c} The office of township manager is not incompatible with the office of township secretary, township treasurer or any other township office or employment, except that of supervisor, auditor or township police officer. 53 P.S. § 66301(c). On its face, Section 66301(c) of the Second Class Township Code expressly states that the positions of Township Manager and Township Secretary/Treasurer are not incompatible. Consequent] , such simultaneous service would be permitted within the parameters of Section 11 0311 ) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1 ) you are a Member and Chairman of the Board of Supervisors of Stroud Township "Township "), located in Monroe County, Pennsylvania; (2) you are employed as the Township Secretary/Treasurer, and you also serve as the appointed Open Records Officer; and (3) the other two Township Supervisors are contemplating hiring a Township Manager and want to consider you as a candidate for that position, you are advised as follows. As a Member and Chairman 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 "), 65 Pa.C.S. § 1101 et seq. As the Township Secretary/Treasurer, you are a public official/public employee subject to the provisions of the Ethics Act. The Ethics Act would not prohibit you from resigning from the Township Board of Supervisors and being appointed as the Township Manager. If you would be appointed as the Township Manager, you would in that capacity be a public official/public employee subject to the provisions of the Ethics Act. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Township Manager and the Township Secretary/Treasurer. 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 Eppppleyy, 18 -577 December 28, 2018 Page 4 truthfully ail 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 act�uall received at 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, /0 M 4 ` Robin M. Hittie Chief Counsel