HomeMy WebLinkAbout19-511 NagyPHONE: 717 - 783 -1610
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ADVICE OF COUNSEL
March 14, 2019
To the Requester:
Ms. Jill E. Nagy, Esquire
Summers Nagy Law Offices
Dear Ms. Nagy:
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.pa.gov
19 -511
This responds to your letter dated January 28, 2019, 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.U-S. § 1101 et seq., would impose prohibitions or restrictions upon a member and
chairman of a township board of supervisors, whose son is a member of the board of
directors of an ambulance association, with regard to participating in deliberations or
other actions of the township board of supervisors pertaining to: (1) a tax increase
related to the provision of financial support to the ambulance association; or (2) other
matters involving the ambulance association.
Facts: You have been authorized by an individual (the "Individual ") to request an
a -disory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
The Individual is a Member and Chairman of a township (the "Township ") board
of supervisors (the "Board of Supervisors "). The Individual's son is a Member of the
Board of Directors of the Topton Ambulance Association ( "Ambulance Association ").
The question presented by your advisory request is whether the Ethics Act would
impose prohibitions or restrictions upon the Individual with regard to participating in
deliberations or other actions of the Township Board of Supervisors pertaining to. (1) a
tax increase related to the provision of financial support to the Ambulance Association;
or (2) other matters involving the Ambulance Association.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
the 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.
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. If
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March 14, 2019
Page 2
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may, and shall, be addressed.
As a Member and Chairman of the Township Board of Supervisors, the Individual
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.
{j) 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), 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 enefit 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
Na , 19 -511
March 14, 2019
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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 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 Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The Individual's son is a member of the Individual's "immediate family" as that
term is defined in the Ethics Act. The Ambulance Association is a business with which
the Individual's son is associated in his capacity as a Director. See, Rendell v. State
Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009) Holding that the tics ct s
definition o the term "business" includes non - profit entities.
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, the Individual would have a conflict of interest with
regard to particip ating in deliberation(s) or other action(s) of the Township Board of
Supervisors pertaining to matter(s) that would financially impact the Ambulance
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March 14, 2019
Page 4
Association, including but not limited to a tax increase related to the provision of
financial support to the Ambulance Association.
In each instance of a conflict of interest, the Individual would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103) 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 otther 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; In his capacit as a Member and Chairman of a township (the
owns ip board of supervisors the "Board of Supervisors "), the Individual on whose
behalf you have inquired is a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the
submitted fact that the Individual's son is a Member of the foard of Directors of the
Topton Ambulance Association ( "Ambulance Association "), you are advised as follows.
The Individual's son is a member of the Individual's "immediate family" as that
term is defined in the Ethics Act. The Ambulance Association is a business with which
the Individual's son is associated in his capacity as a Director.
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, the Individual would have a conflict of interest with
regard to participating in deliberation(s) or other action(s) of the Township Board of
Supervisors pertaining to matter(s) that would financially impact the Ambulance
Association, including but not limited to a tax increase related to the provision of
financial support to the Ambulance Association.
In each instance of a conflict of interest, the Individual would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103 6) 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 an
yy
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 § 1r3.2(h). The appeal may be
Nagy, 19 -511
March 14, 2019
Page 5
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,
4Robin M. Hittie
Chief Counsel