HomeMy WebLinkAbout95-565 HernandezSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 15, 1995
Ileana Hernandez
Board of Supervisors
RR2, Box 362
Dingmans Ferry, PA 18328 95 -565
Re: Conflict, Public Official /Employee, Supervisor, Township,
Decision Affecting Supervisor as Homeowner.
Dear Ms. Hernandez:
This responds to your letter of April 14, 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 on a township supervisor
from deliberating on a matter affecting the community in which she
owns a home and resides.
Facts: On January 3, 1995, having served as Delaware Township
secretary for the last six years, you were appointed as a
supervisor to fill a vacant seat. A corporation seeks support from
the board of supervisors to obtain a federal grant to build
affordable housing in a private community. You own a home and
reside in the community in which the corporation seeks to build.
Due to time constraints and lack of information, the board of
supervisors neither supported nor endorsed the corporation's
proposal. You ask for advice from the Commission under the Ethics
Law concerning any prohibition or restrictions on you deliberating
on the above matter.
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
Hernandez, Ileana, 95 -565
May 15, 1995
Page 2
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.
As a supervisor for Delaware Township, you are a public
official as that term is defined under the Ethics Law, and hence
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.
Hernandez, Ileana, 95 -565
May 15, 1995
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
Hernandez, Ileana, 95 -565
May 15, 1995
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.
For the situation you describe, it must be determined whether,
as a township supervisor owning a house and residing in a community
in which a construction project is proposed you would have a
conflict of interest under Section 3(a) of the Ethics Law that
would prohibit your participation in deliberations pertaining to
the project, or whether you would fit within the "de minimis" or
"class /subclass" exclusion in the definition of "conflict of
interest" in Section 2 of the Ethics Law, 65 P.S. §402. An
appropriate disposition of a case such as this requires that the
requestor of an advisory submit sufficient facts for the Commission
to determine whether participation in deliberations would provide
a pecuniary benefit. If there is a pecuniary benefit, sufficient
facts must be submitted for the Commission to determine whether
such benefit would not create a conflict for the Commission because
it is de minimis or one that affects to the same degree a class
consisting of the general public or a subclass consisting of an
industry, occupation or other group that includes the public
official. Laser, Opinion 93 -002.
The Ethics Law provides that a de minimis economic impact is
m[a]n economic consequence which has an insignificant effect." 65
P.S. §402. A de minimis economic impact is not a term that can be
quantified to a set dollar amount for all cases. The definition
must be applied and determined on a case -by -case basis because a
given dollar amount may be de minimis in one situation and not in
another based upon the factual circumstances. Schweinsberq, Order
900.
To be within the "class" exception, the pecuniary benefit, if
any, would have to affect all the members of the township to the
same degree. To be within the "subclass" exception, the pecuniary
benefit would have to affect to the same degree a group consisting
of an industry, occupation, or other group that includes you.
Although certainly not a complete list, the following information
when compared with others in the subclass might affect whether you
would fall within the subclass exception: location of your property
in relation to the proposed project, size of your property, and
change in value of your property as a result of the project. See
Laser, Opinion 93 -002.
Because your request for advice does not contain facts
Hernandez, Ileana, 95 -565
May 15, 1995
Page 5
sufficient to determine whether the township board of supervisors'
approval or disapproval of the project would give you a pecuniary
benefit and whether such benefit would be within the de minimis or
class /subclass exclusion, the Commission cannot conclude whether
you must abstain from deliberations on the proposed project. See
Laser, Opinion 93 -002.
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 a supervisor for Delaware Township, you are a
public official subject to the provisions of the Ethics Law. The
facts provided are not sufficient to determine whether the de
minimis or class /subclass exclusion would apply to you and,
therefore, whether you must abstain from deliberations on the
matter described above. 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 thirty (30) 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 thirty
(30) days may result in the dismissal of the appeal.
cerely,
•
Vincent . Dopko
Chief Counsel