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HomeMy WebLinkAbout95-509 SummervilleKeith L. Summerville Falls Township Supervisor 240 Devon Road Fairless Hills, PA 19030 Dear Mr. Summerville: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 2, 1995 95 -509 Re: Conflict, Public Official /Employee, Second Class Township, Supervisor, Simultaneous Service, Employee of Municipal Authority, Appointment of Municipal Authority Board Member. This responds to your letters of January 4 and 6, 1995 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 who is an employee of a municipal authority from voting on the appointment of a board member to the municipal authority. Facts: You are both a Supervisor in Falls Township, Bucks County, a Second Class Township, as well as a union employee of the Falls Water and Sewer Authority. Prior to any vote on the reappointment of a Board Member to the Falls Township Authority, you ask whether a Supervisor who is also an employee of the Township Water and Sewer Authority may vote or nominate an individual for appointment or reappointment to the Authority Board. You state that the appointee would neither be a relative nor would provide you with any financial benefit. After stating that you spoke with State Ethics Commission Assistant Counsel, whose opinion is different from the Township Solicitor, you advise that you have not authorized any other individual to make this request on your behalf. In a supplemental letter, you referenced an article that appeared in the Pennsylvania Township News to the effect that a township supervisor could be seated as a member of the same township's water and sewer authority. You state that a majority of the Township's Board wishes to appoint a Supervisor to the Summerville, Keith L., 95 -509 February 2, 1995 Page 2 Authority which would grant the Township Board a majority vote on both the Board of Supervisors and the Municipal Authority Board. You believe that such action would defeat the purpose of having two separate entities and would allow politics to interfere with what is best for the ratepayers and taxpayers in your community. You note that the Authority provides services for more than one Township but does not provide services for all of your Township. At the annual reorganizational meeting, you nominated an individual for reappointment to the Water and Sewer Authority but the nomination was tabled until you receive written confirmation from this Commission. After stating that you received a verbal answer from State Ethics Commission Assistant Counsel as to your request, you once again pose the above issue. As to the Township Solicitor, you state that he has opined on this issue on two occasions: first advising that you could vote but would receive criticism in the press and on the other occasion that you could not vote or nominate anyone to the authority. You conclude by requesting advice as to whether a Township Supervisor may be appointed to the Township Water and Sewer Authority Board, whether the Township Supervisor who would be appointed to the Authority could vote to take -over the Authority so that it would become part of the Township and lastly whether an employee of the Authority who is a Township Supervisor may retain his position as an Authority employee and maintain his position on the Board of Supervisors and, if there is a take -over, whether the Supervisor may hold both positions. You have also supplied a photocopy of a memorandum of the Township Solicitor dated January 9, 1995 which is incorporated herein by reference. 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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Second, it must be emphatically stated that the staff members of the State Ethics Commission do not give verbal opinions via telephone. Any such statement to the contrary is totally false. The only rulings issued by this Commission are in writing. As a Supervisor for Falls Township, you are a public official Summerville, Keith L., 95 -509 February 2, 1995 Page 3 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 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. Summerville, Keith L., 95 -509 February 2, 1995 Page 4 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 applying the provisions of Section 3(a) of the Ethics Law to the questions you pose, you are advised that although there is no prohibition under the Ethics Law for you to simultaneously serve as Township Supervisor and also as an employee of the Municipal Authority, assuming, that the Authority is a separate governmental body, you would have a conflict in appointing a Member to the Municipal Authority Board since you are an employee of that Authority. As was noted in Mutschler, Advice 93 -613: Summerville, Keith L., 95 -509 February 2, 1995 Page 5 Also, should any authority matter, which would have a financial impact upon you, come before the Borough Council, a conflict of interest would exist. Another example of where a conflict would arise for you would be as to appointments of Authority Members who would, in effect, be your employers. In analogous situations, the Commission has noted that official action where such a circular relationship exists presents a conflict of interest. See, Bassi, 86- 007 -R; Woodring, 90 -001. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes), thereby satisfying the requirements of Section 3 (j) , as set forth above. Mutschler at page 4, 5. Thus, you are advised that since you are also an employee of the Authority you would have a conflict in appointing or nominating a Board Member who would be one of your employers; accordingly, you must recuse yourself from such appointment and observe the disclosure requirements of Section 3(j) of the Ethics Law noted above. As to the remaining issues which you have asked, it is clear that you have not posed those questions about your own conduct but as to the conduct of other individuals; as such, those issues are classified as third party issues which may not be addressed, that is, since you are asking those questions not about your own conduct but about some other individuals who have not authorized such inquiry, you are advised that those issues may not be addressed. 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 respective municipal code. Conclusion: As Supervisor for Falls Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a Township Supervisor who is an employee of a Municipal Authority has a conflict and must recuse himself and observe the disclosure requirements of Section 3(j) of the Ethics Law as to nominating or voting to appoint a Member to the Board of that Authority who would be one of the employers of the Supervisor in his position as Authority employee. Lastly, the propriety of the proposed conduct has only been addressed under the Summerville, Keith L., 95 -509 February 2, 1995 Page 6 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 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. erely, Vincent . Dopko Chief Counsel