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HomeMy WebLinkAbout93-618 FleckSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 15, 1993 Robert R. Fleck, Esquire 93-618 115 East Maple Avenue Langhorne, PA 19047 Re: Conflict, Public Official /Employee, Township Supervisor, Fire Company Serving Township, Use of Authority of Office, Member of Immediate Family, Spouse, Business with which Associated, Trustee for Fire Company. Dear Mr. Fleck: This responds to your letter of November 1, 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 a township supervisor with regard to official action affecting a fire company where the supervisor's spouse is trustee for the fire company. Facts: You are Solicitor of Lower Southampton Township. Township Supervisor Susanne McKeon has authorized you to request this advisory. Mrs. McKeon's husband is Trustee for one of the fire companies that serves Lower Southampton Township. As Trustee, all assets owned by the fire company are placed in his name. The Township will be adopting a budget which will include tax revenues for the fire company. Further, the Township will be addressing the settlement of a law suit against the Township and the fire company. Based upon the above, you request an advisory from the State Ethics Commission as to whether Mrs. McKeon must abstain from voting on these matters. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 5S407(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 material Robert R. Fleck, Esquire November 15, 1993 Page 2 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. As a Supervisor for Lower Southampton Township, Mrs. Susanne McKeon is a public official as that term is defined under the Ethics Law, and hence she is 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 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 with which he is associated." Robert R. Fleck, Esquire November 15, 1993 Page 3 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. 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. Reference is made to these provisions of the law not to imply that there has been 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. Robert R. Fleck, Esquire November 15, 1993 Page 4 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 inquiries which you have raised regarding Mrs. McKeon's conduct as a Township Supervisor, Section 3(a) of the Ethics Law prohibits a public official /public employee 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 herself, any member of her immediate family, or a business with which she or a member of her immediate family is associated. Mrs. McKeon's spouse is an immediate family member as defined in the Ethics Law. While it is conceivable that a fire company could be deemed to be within the definition of "business" as set forth in the Ethics Law, that question need not be addressed in this advisory because the submitted facts do not reveal that any of the designated relationships between Mrs. McKeon or her spouse and the fire company fit within the definition of "business with which he is associated." It does not appear from the submitted facts and it is expressly assumed that Mrs. McKeon's husband does not serve as a director, officer, owner, employee, or individual having a financial interest in the fire company. Thus, in order for a conflict of interest to arise for Mrs. McKeon as a Supervisor in matters pertaining to the fire company, there would have to be the use of the authority of office or confidential information received by holding her public position resulting in a private pecuniary benefit for her or any member of her immediate family or a business with which she or a member of her immediate family is associated. Since it appears from the submitted facts that there would be no resulting private pecuniary benefit to Mrs. McKeon or her husband, Mrs. McKeon would not be precluded from participating or voting on matters relating to the fire company. 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 Robert R. Fleck, Esquire November 15, 1993 Page 5 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. Conclusion: As a Supervisor for Lower Southampton Township, Mrs. Susanne McKeon is a public official subject to the provisions of the Ethics Law. Under the submitted facts and express factual assumptions, Section 3(a) of the Ethics Law would not restrict or prohibit Mrs. McKeon from participating or voting on matters pertaining to the fire company for which her husband acts as Trustee. 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. 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 513.2(h). ncerely, Vincent Dopko Chief Counsel