HomeMy WebLinkAbout95-634 KunsmanMichael P. Kunsman
RD 1, Box 606
LaJose, PA 15753
Dear Mr. Kunsman:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 21, 1995
95 -634
Re: Conflict, Public Official, Immediate Family, Spouse, Township,
Supervisor, Township secretary /treasurer.
This responds to your letter requesting advice from the State
Ethics Commission, which was received by the Commission on November
27, 1995.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any restrictions upon a township supervisor from
voting on the appointment of his spouse for township
secretary /treasurer.
Facts: You are a Supervisor for Chest Township, Clearfield
County. The Township will be voting on the appointment of a
Secretary /Treasurer at a reorganizational meeting in January, 1996.
Your wife previously held this position from June 1993 until
September 1995. She was dismissed by two current Supervisors,
Daniel Hutton and LeRoy Brink, after she testified at two separate
Sunshine hearings. It is your belief that she was dismissed as
retaliation for her testimony. The reason for dismissal given by
Mr. Hutton was that it took your spouse two months to deposit some
petty cash. There are presently three supervisors, Mr. Hutton, Mr.
Brink, and yourself. At the reorganization meeting, Mr. Brink will
be replaced by Dan Sunderland. If Mr. Hutton votes for the present
Secretary /Treasurer and Mr. Sunderland votes for your wife, your
vote would be the "tie- breaker." You are inquiring as to whether
you can vote on the appointment of the Secretary /Treasurer since
your wife is seeking this position. Also, you inquire about the
procedure when voting on the salary for the position of
Secretary /Treasurer, which is presently $250 per month.
Kunsman, 95 -634
December 21, 1995
Page 2
Discussion: As a Supervisor for Chest 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 or 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.
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
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
Kunsman, 95 -634
December 21, 1995
Page 3
law not to imply that there has or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Since the term "immediate family" is defined to include a
parent, spouse, child, brother or sister and since your spouse is
in the familial relationship delineated above, Section 3(a) of the
Ethics Law would prohibit you from voting to hire your spouse.
Davis, Opinion 89 -012. Thus, if you were to so vote, such action
would be a use of the authority of office to obtain a private
pecuniary benefit to your spouse in contravention of the Ethics
Law.
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.
Kunsman, 95 -634
December 21, 1995
Page 4
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.
If, after you abstain and comply with the disclosure
requirement of Section 3(j), the other two supervisors are
deadlocked with one voting yes and the other voting no, you may
then vote to break the tie as to the hiring of your spouse to the
position of secretary /treasurer.
Similarly, as to the question of the monthly salary for the
secretary /treasurer, you would have a conflict as to setting that
salary, assuming your spouse is hired for the position, and could
not vote and must observe the disclosure requirement of Section
3(j). However, if a deadlock occurs between the other two
supervisors with you abstaining and meeting the Section 3(j)
disclosure requirements, then you could once again vote to break
the tie.
Lastly, 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.
Conclusion: As Supervisor of Chest Township, you are a public
official subject to the provisions of the Ethics Law. Section 3(a)
of the Ethics Law would prohibit a supervisor from voting on the
appointment of his spouse as secretary /treasurer or setting her
salary. The supervisor must abstain and observe the disclosure
requirement of Section 3(j). However, if the other two supervisors
are deadlocked, the supervisor with the conflict may then vote to
break the tie vote. 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.
Kun @man, 95 -634
December 21, 1995
Page 5
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
§13.2(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.
erely,
incent `i Do.ko
Chief Counsel