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HomeMy WebLinkAbout94-599 FleckRobert R. Fleck, Esquire Attorney at Law 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, Son, Business with which Associated, Trustee for Fire Company, Officer of Fire Company. Dear Mr. Fleck: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 6, 1994 94 -599 This responds to your letter of July 12, 1994, and the letter of Susanne McKeon dated July 25, 1994, by 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 involving workman's compensation insurance and the collection of delinquent taxes affecting a fire company, where the supervisor's spouse is trustee for the fire company and the Supervisor's son serves as an officer in the fire company. Facts: As Solicitor of Lower Southampton Township, you request an advisory on behalf of Susanne McKeon, who is a Supervisor for the Township. You note that two prior advisories have been issued to or on behalf of Mrs. McKeon, specifically Advices of Counsel Nos. 92 -545 and 93 -618. • Mrs. McKeon's husband serves as Trustee and a volunteer fireman for one of the fire companies which serves Lower Southampton Township. Mrs. McKeon's son serves as an officer and a volunteer fireman in the fire company. Recently, there has been a dispute between the fire company and the Township regarding workmen's compensation insurance and the collection of delinquent taxes. You ask whether Mrs. McKeon may vote on these matters. Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 2 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 burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § 5407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The facts which you have submitted are extremely limited, and so, this advice is necessarily limited and conditioned upon certain assumptions set forth herein. Additionally, your letter does not indicate how the collection of delinquent taxes would affect the fire company, and so this advice assumes that the delinquent taxes to which you refer would affect the fire company financially, for example, as set forth in 53 P.S. §65703. As a Township Supervisor for Lower Southampton Township, Pennsylvania, 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 Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 3 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." 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 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 Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 4 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. In applying the above provisions of the Ethics Law to the limited facts 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 Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 5 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. Based upon the facts which you have submitted, it is impossible to determine whether this particular fire company is a part of the Township's governmental body or a "business ". Among the most significant factors in making this determination is the degree to which the fire company is funded and controlled by the township, See, 53 P.S. §65704, or alternatively raises its own funds and governs itself. The issues which you have raised shall be addressed as thoroughly as is possible, given the factual constraints. To the extent the workmen's compensation insurance or the collection of delinquent taxes would result in a pecuniary benefit for the fire company, the applicability of Section 3(a) of the Ethics Law would hinge upon whether this fire company is part of the governmental body or is a "business ". If the fire company is a "business," it would by definition be a business with which Mrs. McKeon's son, a member of her immediate family, is associated through his status as an officer of the fire company. Therefore, to the extent official action would result in a private pecuniary benefit to the fire company as a business with which Mrs. McKeon's son is associated, Mrs. McKeon would have a conflict of interest. If, on the other hand, the fire company is part of the governmental body, there would be no conflict of interest for Mrs. McKeon with respect to any pecuniary benefit to the fire company. Mrs. McKeon's husband and son would receive a private pecuniary benefit from official action as to the Fire Company's workmen's compensation insurance. However, the exceptions to the Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 6 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 or . . . a member of his immediate family . . .." 65 P.S. §402. Conditioned upon the assumption that Mrs. McKeon's husband and son would benefit from the Fire Company's workman's compensation insurance to the same degree as the other firefighters and /or officers, Mrs. McKeon would not have a conflict of interest as to that matter. In each instance of a conflict of interest, a public official /public employee is required to abstain from any participation of any nature and to publicly disclose the nature of the conflict, both orally at the public meeting and in a written memorandum filed with the secretary to be placed with the minutes. 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 Township Supervisor for Lower Southampton Township, Mrs. Susanne McKeon is a public official subject to the provisions of the Ethics Law. Based upon the facts which have been submitted, it is impossible to determine whether the fire company served by Mrs. McKeon's immediate family members is part of the Township governmental body or is a "business." If the fire company is a "business," it would by definition be a business with which Mrs. McKeon's son is associated, and Mrs. McKeon would have a conflict of interest as to matters involving workmen's compensation insurance for the fire company and the collection of delinquent taxes to the extent such would result in a private pecuniary benefit to the fire company. If the fire company is part of the township's governmental body, Mrs. McKeon would not have a conflict of interest as to matters involving the collection of delinquent taxes which would financially benefit the fire company. Furthermore, Section 3(a) of the Ethics Law would not restrict or prohibit Mrs. McKeon from participating or voting on matters pertaining to workmen's compensation insurance for the fire company conditioned upon the express assumption that Mrs. McKeon's husband and son would benefit from the workmen's compensation insurance to the same degree as the other firefighters and /or officers. 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 Fleck, Robert R., Esquire, 94 -599 September 6, 1994 Page 7 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 Commission. A personal appearance before the Commission gill 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 513.2(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. YA 1 U)IN 21 ncent Dop o Chief Counsel cerely,