HomeMy WebLinkAbout90-590 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 30, 1990
90 -590
Re: Conflict, Public Official /Employee, Township Commissioners,
Lawsuit, Discrimination, Vote, Personal Liability.
This responds to your letter of July 31, 1990, in which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon township
commissioners from participating or voting regarding the possible
settlement of a lawsuit against the township and against them
officially and personally relative to an alleged discrimination
claim.
Facts: As the solicitor for A Township and on behalf of the
Board of Commissioners, you request an advisory regarding a
potential conflict concerning an action filed by a former
township employee under the Civil Rights Act of 1964 and 42
U.S.C. 1983 against the township, the board of commissioners and
three commissioners individually and as township commissioners.
The lawsuit alleges discrimination against the plaintiff by
reason of sex and elimination of plaintiff's job for political
reasons. The lawsuit names three of the township commissioners
individually as defendants seeking compensatory and punitive
damages on the allegations that their official actions were taken
for political reasons so as to preclude any immunity under state
or federal law. Of the five member board, two of the members are
not named as individual defendants. A proposal has been
submitted whereby the township would pay the sum of money and
settlement of the case which would include dismissal of the
claims for compensatory and punitive damages against the three
commissioners named as individual defendants. Those
commissioners are still in office and their participation in the
settlement appears necessary for purposes of the quorum and for
the votes necessary to approve use of township funds. You
conclude by requesting an advisory as to the legality of
participating of the three commissioners named as individual
defendants as to voting to use township funds to settle this
case.
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Discussion: As commissioners for A Township, the three
individuals are public officials as that term is defined under
the Ethics Law, and hence they are subject to the provisions of
that law
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as
follows:
Section 2. 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. "Conflict" or
"conflict of interest" 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
or 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.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value and no public
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
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influenced thereby. Reference is made to these provisions of the
law not to imply that there has or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) 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.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain as well as file a written memorandum
to that effect with the person recording the minutes or
supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s), then in that
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event participation is permissible provided the disclosure
requirements noted above are followed.
In applying the provisions of Section 3(a) of the Ethics Law
quoted above to the instant matter, it is clear that the three
commissioners in question who are sued individually would have a
conflict in this case because their use of authority of office
through participating and voting on the settlement of this
lawsuit would have a private pecuniary benefit to themselves
individually in that they would be voting to expend township
rather than their own personal funds in attempting to compromise
and settle the lawsuit in question. In light of the conflict,
Section 3(j) of the Ethics Law would require them to abstain as
well as comply with the disclosure requirements set forth above.
However, since the conflict of the three commissioners would
result in a lack of a quorum, Section 3(j) in that particular
instance would allow them to vote on the matter provided once
again that the disclosure requirements of Section 3(j) are
satisfied.
The propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Law has not been considered in that they do
not involve an interpretation of the Ethics Law. Specifically
not addressed herein is the applicability of the Second Class
Township Code, the allowability of a surcharge action or the
propriety of the use of township funds to settle a lawsuit
wherein individuals are named in both an official and individual
capacity.
Conclusion: As commissioners for A Township, the three
commissioners are public officials subject to the provisions of
the Ethics Law. Under Section 3(a) of the Ethics Law, first
class township commissioners who are officially and individually
named as defendants in a lawsuit alleging sex discrimination and
termination for political reasons have a conflict in voting to
use township funds to settle the case. Since the conflict of
three of the five board members would result in the lack of a
quorum, those three members could vote provided the disclosure
requirements of Section (j) of ` the Ethics Law are satisf ied.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
Pursuant to Section 7(11), this 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, providing . the requestor has disclosed truthfully all
the material facts and committed the acts complained of in
reliance on the Advice given.
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such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full
Commission review this Advice. A personal appearance before the
Commission will be scheduled and a formal Opinion from the
Commission will be issued. Any such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code §2.12.
incerely,
Vincent 3'. Dopko,
Chief Counsel