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HomeMy WebLinkAbout96-535 FrutcheyJames Frutchey, Jr. 17 Keystone Lane Tobyhanna, PA 18466 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 2, 1996 96 -535 Re: Conflict, Public Official /Employee, Chairman, Board of Supervisors, Wife, Township Secretary, Administrative Assistant. Dear Mr. Frutchey: This responds to your letter of March 1, 1996 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 the chairman of a township board of supervisors in matters pertaining to the appointment /employment of his wife, who currently serves as acting township secretary and as an administrative assistant for the township. Facts: As Chairman of the Coolbaugh Township Board of Supervisors, you request an advisory from the State Ethics Commission. Your inquiry focuses upon matters involving your wife. Your wife was hired as the Township Receptionist in 1988, prior to your taking office as a Supervisor in 1990. Your wife currently serves as the Township's Administrative Assistant (a position which you state was never abolished) and she has also been serving as Acting Township Secretary for the past two years following the resignation of the prior Secretary. You note that the prior Secretary received $21.70 per hour and had your wife's help. Your wife, on the other hand, is earning $10.72 per hour for performing both of the aforesaid positions. In November, 1995, the Board of Supervisors voted to appoint your wife as the Township Secretary. Subsequently, at the Board's organizational meeting on January 2, 1996, the vote on the reappointment of the Township Secretary resulted in a 2 -2 tie with you abstaining due to a conflict of interest. At the same meeting, an issue arose as to whether your wife even had a job at the Township. A motion was made and carried 4 -0 -1, with you abstaining, to have the Township Solicitor, Jerry Hanna, look at your wife's personnel file, and the payroll records and minute books. That material was then sent to counsel for the Pennsylvania State Association of Township Supervisors, for a determination as to whether there were two positions -- one being Secretary and the other being Administrative Assistant. It was determined that there are two positions. Frutchev, 96 -535 April 2, 1996 Page 2 Your wife has been appointed Acting Township Secretary until a Township Secretary is appointed. Meanwhile, she also continues serving as the Administrative Assistant. The position of Township Secretary has been advertised and 33 resumes have been received. You anticipate that the following issues will be raised and will result in a 2 -2 deadlocked vote by the rest of the Board: (1) Whether to continue employing your wife as Administrative Assistant or to abolish the Administrative Assistant position; (2) Whether your wife should be paid for 25 hours of overtime from the first 10 pay periods of 1995 before a Manager was hired; and (3) Whether your wife can carry 4 vacation days over from 1995 to 1996 (You state that your wife could not use the 4 vacation days in 1995 due to the work Toad in her office). You note that there have already been many hours expended in executive sessions of the Board which you have not attended because they pertained to your wife. You further state that your wife will not resign her position because she feels that she works hard, does her job.well and has done nothing wrong. It is your opinion that the situation is not only unfair to your wife but is politically motivated against you. You have provided your own analysis of Section 403(j), which is quoted verbatim: Subsection (j) of Section 403, Restricted Activities of the Ethics Act provides the procedures to be followed where voting conflicts are encountered. The subsection provides that where a governing body would be unable to take action on a matter before it because of the number of members of the body abstaining would make a majority or other legally required vote unattainable, then the abstaining member shall be permitted to vote provided disclosures are made. This is not the case here, as four voting members remain after my abstention. The subsection goes on to provide specifically that in the case of a three member body and one member has abstained as a result of a conflict of interest, and the remaining two members cast opposing votes, the abstaining member shall be permitted to vote to break the tie provided that disclosures are made. However the section does not similarly provide for our circumstances of a five member board and only one member abstaining. (Letter from Frutchey to Dopko dated March 1, 1996 at 2). The specific questions you pose are whether you can vote to break the tie in any of these issues and whether you are permitted to state your opinion on these matters. Frutchev, 96 -535 April 2, 1996 Page 3 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 Chairman of the Board of Supervisors for Coolbaugh Township, Pennsylvania, 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. 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 Frutchev, 96 -535 April 2, 1996 Page 4 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. 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 Frutchev, 96 -535 April 2, 1996 Page 5 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. Having set forth the above provisions, the questions which you have posed shall now be addressed. In answer to your first question, you may not vote to break a 2 -2 tie of the rest of the Board in matters as to which you have a conflict. Section 3(j) sets forth very clearly the abstention and disclosure requirements which must be observed when there is a conflict of interest and the precise instances where exceptions are made. There is no exception which would permit a member of a 5- member Board who has a conflict to vote to break a 2 -2 tie of the rest of the members. As you noted in your own analysis of Section 3(j), your abstention does not make the majority or other legally required vote of approval unattainable. Rather, there are four other members of the Board who remain able to vote. Furthermore, the provision which allows a member of a three - member body to vote to break a deadlock despite a conflict is inapplicable to your situation, in that your Board is not a three - member Board. See, Mlakar, Advice 91- 523 -S. In answer to your second specific inquiry, where you, as a public official, have a conflict of interest and are therefore required to abstain from a matter, you may not participate -- even in the Board's discussions. A public official's duty, where he has a conflict of interest, is to abstain fully from using the authority of his office or any confidential information he has access to by being in his public position. The use of authority of office is not limited merely to voting but encompasses all of the tasks needed to perform the functions of the given position (See, Juliante, Order No. 809), including participation in official discussions or lobbying for a particular result. 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 Second Class Township Code. Conclusion: As Chairman of the Board of Supervisors for Coolbaugh Township, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest in matters pertaining to the Township's appointment /employment of your wife. In each instance of a conflict, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. As a public official, you may not participate in the Board's discussions in matters as to which you have a conflict. You may not vote to break a 2 -2 deadlock of the rest of the Board in matters as to which you have a conflict. 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 Frutchev, 96 -535 April 2, 1996 Page 6 other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on Advice given. This letter is a public record and will be made available as such. 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. Sincerely, Vincent J. Dopko Chief Counsel