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HomeMy WebLinkAbout94-584 BitlerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 15, 1994 Richard M. Bitler R.R. #1, Box 560 Muncy, PA 17756 94 -584 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Business with which Associated, Volunteer Fire Company, Firefighter, Life Member. Dear Mr. Bitler: This responds to your letter of June 7, 1994 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 who is also a firefighter and life member, but not an officer or employer, in a fire company which serves the township, with regard to matters concerning the fire company. Facts: As a Township Supervisor for Muncy Creek Township and a firefighter and life member of the Muncy Creek Community Fire Company, you request an advisory from the State Ethics Commission as to whether you would have a conflict of interest in matters pertaining to the said Fire Company. You are a life member of the Fire Company but hold no office. You attend some meetings, but abstain from voting on any issues, which abstention is recorded in the Fire Company minutes. You fight fires, run ambulance calls, participate in practices and fund raisers, and help wherever you can. You outline the connection between the Township and the Fire Company as follows. The Township pays for the Fire Company's workmen's compensation insurance and liability insurance. The Township from time to time donates or gives money to the Fire Company to purchase items needed by the Fire Company, such as hoses, breathing apparatus, repairs for trucks, fire hydrants, and the like. The Fire Company raises the rest of the money it needs. Bitler, Richard M., 94 -584 July 15, 1994 Page 2 You pose the following specific inquiries: 1. Whether, as a Muncy Creek Township Supervisor, you should abstain from voting on matters pertaining to the Muncy Creek Community Fire Company, which matters could include, for example, the general operations of the Fire Company, ordinances that affect the Fire Company such as hazardous waste clean up from vehicular accidents, and other general business that may arise; and 2. Whether as a Muncy Creek Township Supervisor, you should abstain from voting on matters pertaining to the Muncy Creek Community Fire Company that involve financial donations or loans to the Fire Company for its operations. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 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. It appears from the facts which you have submitted that you are a volunteer for the Muncy Creek Community Fire Company and are not an employee of the Fire Company. As a Township Supervisor for Muncy Creek 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: Bitler, Richard M., 94 -584 July 15, 1994 Page 3 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. "Business." Any 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. In addition, Sections 3(b) and 3(c) of the Ethics La* 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 Bitler, Richard M., 94 -584 July 15, 1994 Page 4 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 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. Bitter, Richard M., 94 -584 July 15, 1994 Page 5 In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. Depending upon the circumstances in a given case, a fire company may be viewed as part of a governmental body such as a township, or as a private entity meeting the definition of "business" as set forth in the Ethics Law and above. If a fire company is part of the governmental body in which the public official /public employee in question serves, it may generally be said that a private pecuniary benefit to the fire company alone would not present a conflict of interest for the public official. Only if there were additional circumstances, such as if the public official /public employee or a member of his immediate family would also derive a private pecuniary benefit, could there be a conflict of interest. If, on the other hand, the fire company is a "business," there is the potential for a conflict of interest solely based upon a private pecuniary benefit to the fire company, because the fire company is then an entity separate from the governmental body. The issue is whether the fire company is a "business with which [the public official /public employee] is associated," as that term is defined in the Ethics Law. That definition would include any business of which the public official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. In this case, it is clear that Muncy Creek Community Fire Company is not a business with which you are associated because you are not an officer or employee. Thus, in matters where the sole private pecuniary benefit would be for the fire company itself, you would not have a conflict of interest regardless of the nature of the fire company. A conflict of interest under the Ethics Law would only arise in matters where you, a member of your immediate family, or a business with which you or a member of your immediate family is associated (not the fire company) would receive a private pecuniary benefit. Based upon this conclusion, the status of the Muncy Creek Community Fire Company as either a part of the governmental body or as a private business entity need not be addressed in this case. In response to your two specific inquiries, the Ethics Law would not require that you abstain from voting on matters pertaining to the Muncy Creek Community Fire Company such as the Fire Company's general operations, ordinances that affect the Fire Company on matters such as hazardous waste clean up from vehicular Hitler, Richard M., 94 -584 July 15, 1994 Page 6 accidents, other general business that might arise, and /or financial donations or loans to the Fire Company for its operations, unless as to such matters, you, a member of your immediate family, or a business with which you are associated (not the Fire Company) would receive a private pecuniary benefit. You would receive a private pecuniary benefit from official action as to the Fire Company's workmen's compensation insurance and liability insurance. However, the exception to the definition of "conflict of interest" include official action "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 65 P.S. S402. Conditioned upon the assumption that you would benefit from the Fire Company's workman's compensation insurance and liability insurance to the same degree as the other firefighters, you would not have a conflict of interest as to those matters. 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 or Muncy Creek Township Ordinances. Conclusion: As a Township Supervisor for Muncy Creek Township, you are a public official subject to the provisions of the Ethics Law. The Muncy Creek Community Fire Company is not a business with which you are associated. You would not have a conflict of interest under the Ethics Law as to matters concerning the Muncy Creek Community Fire Company where there would be no private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. 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 appeal the Advice to the full Bitter, Richard M., 94 -584 July 15, 1994 Page 7 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 writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787- 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, v•N Vincent Dopko Chief Counsel