Loading...
HomeMy WebLinkAbout95-595 Summervillet l STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1995 Keith Summerville 240 Devon Road Fairless Hills, PA 19030 95 -595 Re: Conflict, Public Official /Employee, Second Class Township, Supervisor, Insurance, Spouse, Business with which Associated. Dear Mr. Summerville: This responds to your letter of July 27, 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 making inquiries about township insurance matters when his spouse is employed by an insurance company. Facts: You were elected as a Supervisor in Falls Township in 1991 for the 1992 to 1998 term. Although you have requested information regarding the township's insurance policies from the Township Manager, you have not received such information. The Township Solicitor advised you by letter dated July 17, 1995, a copy of which is incorporated herein by reference, that you cannot ask any questions regarding insurance matters due to a conflict of interest. The alleged conflict of interest concerns your wife, whom you married in October, 1993, relative to her employment by the Robert D. Quinn Agency. In 1992, Robert D. Quinn Agency was the broker for all of the Township's insurance policies. Although there was no official broker of record in 1993, all policies were written by the Robert D. Quinn Agency. In 1994, insurance policy placement was split between the Robert D. Quinn Agency and an agency located outside of Pittsburgh. Robert D. Quinn Agency did not solicit the Township for the placement of any insurance in 1995. After the last policy written by the Robert D. Quinn Agency expired in June, 1995, the agency outside of Pittsburgh was named broker of record. That agency provided the Township with an insurance proposal and in some cases recommended specific carriers Summerville, Keith, 95 -595 August 22, 1995 Page 2 but did not recommend a police liability carrier. As a Township Supervisor you received information on June 30, 1995 about an insurance comparison, which you state is attached but is not. Since a review of the comparison raised many questions, you requested information as set forth in your letter of July 7, 1995 to the Township Manager, a copy of which is included and incorporated herein by reference. You received a letter during the week of July 10, 1995 proposing a meeting to discuss your concerns. After you declined a meeting on July 17, 1995 due to your work schedule and family responsibilities, you again requested the information in writing. You then received the letter from the Township Solicitor. Your attorneys, Flager & Yockey, responded to the Township Solicitor in a letter dated July 20, 1995, a copy of which is included and incorporated herein by reference. You strongly disagree with the Township Solicitor's opinion that any vote by you on insurance matters is a conflict of interest. In the instant case, you state that the Board of Supervisors was only voting on the broker of record and the company that employed your wife was not even considered; your wife's company did not even solicit the township for insurance. After reciting that the Solicitor's statement that ". These demands for information and specific information originated with your wife. . ." is totally untrue, you believe that you are entitled under the Freedom of Information Act to the information you have requested. You assert that any citizen of Falls Township would be entitled to this information, the nonproduction of which is a violation of the Freedom of Information Act. As per your attorney's letter, if the Robert D. Quinn Agency or your wife, Beth Summerville, were presently soliciting the Township to become broker of record, you recognize that you would have a conflict in voting on any agent as broker of record. You note that this is not the case. You seek an advisory as to whether you are prohibited from asking any questions or have a conflict concerning Township insurance coverage written by any company that does not employ your wife who is a licensed insurance agent in Pennsylvania. 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 Summerville, Keith, 95 -595 August 22, 1995 Page 3 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. As Supervisor for Falls 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: 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. Summerville, Keith, 95 -595 August 22, 1995 Page 4 "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(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of the law would require that an open and public process must be used in all situations where a public official /employee is otherwise Summerville, Keith, 95 -595 August 22, 1995 Page 5 appropriately contracting with his own governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor/ applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Summerville, Keith, 95 -595 August 22, 1995 Page 6 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 Section 3(a) of the Ethics Law to the instant matter, a public official may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. Section 3 (a) of the Ethics Law would not prohibit you from receiving information about township insurance matters when your spouse is employed by an insurance company that is neither broker of record nor the issuer of any insurance policies for the township, subject to the following qualifications. First, it is assumed that you would not obtain any confidential information for the benefit of the business with which your spouse is associated such as obtaining confidential information of competitive bids so as to insure the submission of a low bid. Similarly, you could not use the authority of office to advance a contract for the business with which he or a member of his immediate family is associated or conversely take action to eliminate business competitors. Pepper, Opinion 87 -008. Once again, it is not suggested that you would engage in such activity; the above examples are provided to illustrate the restrictions imposed by the Ethics Law. Therefore, subject to the qualifications and restrictions noted above, Section 3(a) of the Ethics Law would not prohibit you from receiving information on township insurance matters when your spouse is associated with an insurance business, which is not broker of record and which is not the issuer of any contracts with the township. The propriety of the proposed conduct has only been addressed Summerville, Keith, 95 -595 August 22, 1995 Page 7 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. Section 3(a) of the Ethics Law would not prohibit a second class township supervisor from obtaining information as to township insurance matters where his spouse is associated with an insurance company, which is not broker of record for the township and which is not the issuer of any insurance policies with the township, subject to the limitations, restrictions and qualifications noted 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 FAS 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. erely, Vincent Dop Chief Co sel