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HomeMy WebLinkAbout93-600 WaiteDear Mr. Waite: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 15, 1993 Clyde W. Waite, Esquire Stief, Waite, Gross, Sagoskin & Gilman The Barnsley Building 547 East Washington Avenue P.O. Box 274 Newtown, PA 18940 -0274 93 -600 Re: Conflict, Public Official /Employee, Township Council, Use of Authority of Office or Employment, Vote for Post - Employment Contract, Payment to Township Employees and Officials for Attendance at Court - related Matters after Termination of Public Service. This responds to your letter of August 19, 1993 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon Township Council from implementing a program whereby former Officials and Employees would receive compensation for travel expenses and lost wages fors attendance at Court - related matters on behalf of the Township. Facts: You are Solicitor for Bristol Township, Bucks County. Over the past several years, township employees and elected officials have been required to appear at court hearings, administrative hearings and pre -trial matters on behalf of the Township, after the employees' or officials' employment or term of office with the Township has ended. When these individuals are called by the Township to appear, they lose time from work, to their financial detriment. Accordingly, the Township Council wishes to implement a new program which will provide compensation to these individuals for their appearances. The Township Council passed a resolution authorizing you to seek this advisory. A copy of the resolution was enclosed with your letter and is incorporated herein by reference. Based upon the above, you request an advisory as to whether there are any conflicts of interest under the State Ethics Waite, 93 -600 September 15, 1993 Page 2 Law regarding the proposed plan as it relates to former township employees and elected officials. Discussion: Before responding to your request, three points must be made. First, it is noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §5407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Second, it is further noted that your request for advice may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and 7(11) of the Ethics Law makes it clear that an opinion or advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion or 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 Law violations by a person who is subject to the Ethics Law. Third, this Commission does not have the statutory jurisdiction to rule upon a governmental body's wisdom or judgement in decisions as to whether and in what amount such compensation may be given to public employees and officials. The Commission has noted its concern that due consideration be given to the appropriate utilization of tax revenues, in accordance with the public trust. See, e.q., Means, Opinion 90 -007 at 5 -6. As Council Members for Bristol Township, the Members 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. Waite, 93 -600 September 15, 1993 Page 3 65 P.S. §402. "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 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. 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. 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 Waite, 93 -600 September 15, 1993 Page 4 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 and to publicly disclose the abstention and reasons for same, both orally and by filing 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the facts which you have submitted, Section 3(a) of the Ethics Law prohibits a public official /public employee from using the authority of public office /public employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 3(a) would prohibit the Bristol Township Council Members from using the status of their respective positions, the authority of their office, or any confidential information received by being in their Waite, 93 -600 September 15, 1993 Page 5 positions of public office as a means of structuring an opportunity for additional compensation for themselves. Subject to all of the conditions, qualifications and restrictions noted above, the Ethics Law would not preclude the Bristol Township Council from implementing the reimbursement proposal as to former public officials and employees. 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 Township Code. However, even though it is beyond the scope of the Ethics Law and this Advice of Counsel to make determinations as to the Township Code, it should be noted that the Township Code may prohibit the proposed conduct. In the publication of the Pennsylvania State Association of Township Supervisors, Pennsylvania Township News, the July 1989 Question and Answer feature presented a question as to whether a township could keep a retired employee on the township hospitalization insurance, even if the former employee reimburses the township for the cost of the coverage. The response was that except in those cases that come under the federal COBRA law, the Township Code prohibits anyone other than active township employees and township supervisors to be included in the township plan. Once the employee retires and thus severs the employer - employee relationship, that person may not participate in the township plan, even at that person's own expense. Accordingly, it is suggested that the Bristol Township Council seek the advice of the solicitor or private counsel regarding the application of the Township Code to the proposed conduct. Conclusion: Members of Bristol Township Council are public officials subject to the provisions of the Ethics Law. Subject to the conditions, qualifications, and restrictions noted above, the Ethics Law would not prohibit the Township Council from implementing a reimbursement plan for former employees and officials for attending Court- related matters on behalf of the Township. 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. Waite, 93 -600 September 15, 1993 Page 6 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 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 writincr and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). *ncerely, Vincent J. J Dopko Chief Counsel