HomeMy WebLinkAbout93-622 IsbellRichard A. Isbell
R.D. #2, Box 64
Ulster, PA 18850
Dear Mr. Isbell:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 23, 1993
93 -622
Re: Conflict, Public Official /Employee, Township Supervisor, Use
of Authority of Office or Confidential Information, Vote,
Immediate Family, Spouse, Township Secretary /Treasurer,
Motion, Second.
This responds to your letter of November 12, 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 second class
township supervisor from seconding and voting on a motion to
appoint his spouse as township secretary /treasurer when the
remaining two supervisors have opposing views.
Facts: You have been elected recently to the three - member Board of
Supervisors for Ulster Township, Bradford County. Currently, your
wife holds the position of Ulster Township Secretary /Treasurer,
which is a position subject to annual appointment by the Board of
Supervisors. The organizational meeting of the Township will be
held on January 3, 1994 and you believe that one of the other
Supervisors may want to retain your wife as Secretary /Treasurer.
The other Supervisor may not second a motion to retain her in the
position. Based upon the above, you request an advisory from the
State Ethics Commission as to whether you may second and vote on
this matter.
Discussion: It is initially 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
Richard A. Isbell
November 23, 1993
Page 2
burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 P.S. SS409(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As Supervisor for Ulster Township, you are a public official
as that term is defined under the Ethics Law, and hence you 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 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.
Richard A. Isbell
November 23, 1993
Page 3
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.
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
Richard A. Isbell
November 23, 1993
Page 4
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.
On the question of whether you, as Township Supervisor, may
vote on the matter regarding the appointment of your wife as
Township Secretary /Treasurer, the Commission ruling in Bloss, Order
No. 869, is illustrative. In that case, two of three county
commissioners were deadlocked on the appointment of the third
county commissioner, Bloss, to a position on the board of
assessment appeals. A motion for the appointment was made and
seconded. There was then a vote on the motion. Bloss abstained in
compliance with Section 3(j) by disclosing in writing the nature of
the conflict and notifying the secretary for the commissioners.
The two remaining commissioners cast opposing votes. Bloss then
broke the tie by casting the deciding vote in her favor. The
Commission found no violation by Bloss who followed the disclosure
requirements of Section 3(j) before she voted to break the deadlock
of the other two commissioners. Thus, it is in this manner that
you may vote, after first abstaining and making full disclosure in
compliance with Section 3(j), on a matter in which you have a
conflict of interest, such as the appointment of your wife as
Secretary /Treasurer.
As to seconding a motion where you have a conflict, the recent
Commission opinion of Garner, Opinion No. 93 -004, is controlling.
In Garner, the issue was whether a supervisor could second a
motion, even if he had a conflict, when the other supervisors held
opposing views. The Commission noted that seconding a motion is
clearly a use of authority office. Juliante, Order No. 809.
Hence, if an individual has a conflict, he could not participate,
make a motion, second a motion, or vote. The Commission further
stated, however, that the General Assembly, in enacting Section
3(j), would not have allowed a public official /employee on a three
member board who has a conflict to be able to vote unless a second
to the motion could be made so that the matter would be in the
posture for a vote. Thus, since there is a need for a second to a
motion in order to make Section 3(j) of the Ethics Law operative,
the General Assembly intended as to three member boards for the
public official with a conflict to be allowed to second so that if
the other supervisors become deadlocked, the public official could
then vote provided the disclosure requirements are satisfied.
In light of the foregoing, you are advised that when you would
normally abstain due to a Section 3(j) conflict, the Ethics Law
Richard A. Isbell
November 23, 1993
Page 5
does allow you to second a motion made by one of the remaining
Supervisors where a second is not forthcoming from the other
remaining Supervisor, who has an opposing view. Thereafter, if the
other two Supervisors cast opposing votes, you could then vote to
break the tie provided you first complied with the requirements of
Section 3(j).
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.
Conclusion: As a Supervisor for Ulster Township, you are a public
official subject to the provisions of the Ethics Law. Under
Section 3(j) of the Ethics Law, you may second and vote upon a
motion to appoint your wife as Township Secretary /Treasurer when
the remaining two Supervisors have opposing views provided the
disclosure requirements of Section 3(j) first are satisfied.
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.
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. Anv such appeal must be in writing and must be received at
the Commission within 15 dram of the date of this Advice pursuant
to 51 Pa. Code S13.2(h).
cerely,
yV�
Vincent'. Dopko
Chief Counsel