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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