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HomeMy WebLinkAbout95-598 ChristDonald M. Christ Chairman Board of Supervisors Lynn Township, Lehigh County P.O. Box 3 New Tripoli, PA 18066 Dear Mr. Christ: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 25, 1995 95 -598 Re: Conflict, Public Official /Employee, Second Class Township, Supervisor, Fire Company, Non - profit Volunteer Association, Assistant Fire Chief. This responds to your letter of July 27, 1985 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 assistant fire chief of a non - profit volunteer fire company. Facts: You serve as Chairman of the Board of Supervisors and a roadmaster in Lynn Township. As roadmaster your duties include all aspects of road construction, maintenance and repair. The Community Fire Company of New Tripoli came before the Board of Supervisors on June 1, 1995 to permit the Fire Company to place a substation on a Township owned lot. The Fire Company is a non- profit, volunteer organization which serves the residents of Lynn Township. Although you have served on the Board of Directors in the past, you are currently an Assistant Fire Chief within the organization which delegates your responsibilities as to fire- fighters who would look to you for direction in the absence of the Fire Chief. This position is appointed and does not entitle you to vote on any issues before the Board of Directors of the Fire Company. Specifically, you seek an advisory as to: 1. whether the appointment of Assistant Fire Chief would be considered an office of the Fire Company; and Christ, Donald M., 95 -598 August 25, 1995 Page 2 2. if the Fire Company would be viewed as a business. You have enclosed a copy of the Constitution and By -laws of the Community Fire Company of New Tripoli which will be 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. As a Supervisor for Lynn 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 Christ, Donald M., 95 -598 August 25, 1995 Page 3 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. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 Christ, Donald M., 95 -598 August 25, 1995 Page 4 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 express 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 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: Christ, Donald M., 95 -598 August 25, 1995 Page 5 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. As to the two questions you pose, the first question is beyond the scope of the Ethics Law. The determination of whether you as Assistant Fire Chief are an officer of the Fire Company turns upon an interpretation of the Constitution and By -Laws of the New Tripoli Community Fire Company. Since the State Ethics Commission only has jurisdiction to interpret the Ethics Law and such other laws which may impact upon the Ethics Law, your first question cannot be addressed. As to your second question of whether the Fire Company is Christ, Donald M., 95 -598 August 25, 1995 Page 6 considered a business, you are advised that the Fire Company is a business as that term is defined under the Ethics Law even though the Fire Company is volunteer and non - profit. In Stewart, Opinion 79 -070, the Commission considered Blue Cross /Blue Shield as a business even though non - profit; in Novack, Opinion 91 -009 Pennsylvania State University was found to be a business within the definition of that term in the Ethics Law. Since the New Tripoli Community Fire Company is a business under the Ethics Law, the question is whether that business is one with which you are associated. As long as you are not a director, officer, owner, employee or have a financial interest in the Fire Company, it would not be a business with which you are associated. As noted above, the question of whether you hold any such position in the Fire Company involves an interpretation of the Constitution/ By -Laws which is beyond the scope of the Ethics Law. Assuming factually that you do not hold any such position, the Fire Company would not be a business with which you are associated under the Ethics Law in which case you would not have a conflict under Section 3(a) of the Ethics Law. 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 Lynn 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 participating in matters related to a non - profit volunteer fire company provided the fire company is not a business with which he is associated. 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 Christ, Donald M., 95 -598 August 25, 1995 Page 7 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. ncerely, Vincent 1. Dopko Chief Counsel