HomeMy WebLinkAbout95-503 PerinoSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 19, 1995
Deborah K. Perino
Salem Township Board of Supervisors
Municipal Building
R.D. #4
Greensburg, PA 15601
95 -503
Re: Conflict, Public Official /Employee, Township Supervisor,
Litigation, Emergency Response Agency, Dispatch Issue.
Dear Ms. Perino:
This responds to your letter of December 19, 1994 in which you
requested advice from the State Ethics Commission.
Issue: Whether, pursuant to the Public Official and Employee
Ethics Law, a township supervisor may participate as to medical
services dispatching issues, where the supervisor is involved in a
lawsuit related to a particular emergency response agency that
could be affected by such matters, but where another member of the
three - member board of supervisors is absent on medical leave.
Facts: You are a Township Supervisor serving on the three - member
Salem Township Board of Supervisors. There are medical services
dispatching issues before the Board which you state need to be
clarified because the present dispatch system takes "extra time."
However, you are presently involved in a lawsuit that is related to
one of the emergency response agencies that may or may not be
affected by the vote on the dispatch issue. One of the other
members of the three - member Board of Supervisors is absent on
medical leave. You state that you have filed the necessary
documents revealing a conflict of interest and have made the
appropriate disclosures during a Township public meeting. The
third supervisor is present and ready to vote, but does not make a
majority vote. You ask whether you may vote on the medical
services dispatching issues under these circumstances.
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
Perino, Deborah K., 95 -503
January 19, 1995
Page 2
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. § §407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a Township Supervisor for Salem Township, Pennsylvania, 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.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
Perino, Deborah K., 95 -503
January 19, 1995
Page 3
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
minutes or supervisor.
Perino, Deborah K., 95 -503
January 19, 1995
Page 4
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
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.
Under Act 170 of 1978, the State Ethics Commission held that
when a public official is involved in litigation, matters involving
or affecting that litigation do present a conflict of interest for
the public official. See, DeLano, Opinion 88 -008. Furthermore,
the State Ethics Commission held that a public official has an
inherent conflict of interest in matters pertaining to an entity
when he is a litigant against that entity. Golla, Opinion 88 -004.
These decisions would hold true under Act 9 of 1989 as well.
However, under the facts which you have submitted, it is not
possible to make a conclusive determination as to whether you would
in fact have a conflict of interest on the medical services
dispatching issues before the Salem Township Board of Supervisors.
You have not indicated your role in the lawsuit or how the lawsuit
is related to the particular emergency response agency in question.
In the absence of specific facts enabling a definitive conclusion
as to whether you would have a conflict of interest, this Advice
shall assume that a conflict of interest does exist for you as to
the medical services dispatching issues before the Board.
Turning to your specific inquiry regarding whether you may
vote despite such a conflict given that one of the other two
Supervisors is absent on medical leave, you are advised that the
following portion of Section 3(j) is applicable:
Section 3. Restricted activities
(j) . 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
Perino, Deborah K., 95 -503
January 19, 1995
Page 5
65 P.S. 5403 (j) .
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.
In Garner, Opinion 93 -004, the Commission interpreted the
above language of Section 3(j) as to a three - member Board of
Supervisors and stated in pertinent part:
However, 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, we
believe that 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
members boards for the public official with a conflict to
be allowed to second so that if the other supervisors
became deadlocked, the public official could then vote
provided the disclosure requirements are satisfied.
In light of the foregoing, you are advised that
Section 3(j) of the Ethics Law does allow an individual
to second a motion where a second is not forthcoming in
situations where the two remaining Supervisors have
opposing views or where one of the other two Supervisors
is absent. Our ruling is expressly limited in its
application to three member boards involving the question
presented.
Id. at 6 (Emphasis added).
Under the Garner Opinion, as long as you have satisfied the
prerequisite Section 3(j) disclosure requirements and have
otherwise fully abstained, you would be allowed to second a motion
and vote on the medical dispatching issues despite your conflict,
because one of the other two Supervisors is absent on medical
leave. It would be an exercise in futility to permit a public
official to second a motion but not vote under these circumstances.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
Perino, Deborah R., 95 -503
January 19, 1995
Page 6
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 Salem Township,
Pennsylvania, you are a public official subject to the provisions
of the Ethics Law. A township supervisor has a conflict of
interest under Section 3(a) of the Ethics Law in matters involving
or affecting litigation to which that supervisor is a party. A
township supervisor has a conflict of interest under Section 3(a)
of the Ethics Law in matters pertaining to an entity when that
supervisor is a litigant against that entity. After fully
satisfying the disclosure requirements of Section 3(j) noted above
and otherwise fully abstaining, a township supervisor who serves on
a three - member board of township supervisors may second a motion
and vote on a matter as to which the supervisor has a conflict of
interest where one of the other two supervisors is absent on
medical leave. 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 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 513.2(h). The appeal may
be received at the Commission by hand delivery, United States
mail, delivery service, or by FAS 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.
erel
ncent Dop
Chief Counsel