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Home My WebLink About96-585 KemperWilliam D. Kemper, Esquire 209 Diamond Street West Butler, PA 16001 -5712 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 21, 1996 96 -585 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office, Vote, Reimbursement of Expenses, Legal Fees, Attorneys Fees, Investigation by State Ethics Commission Dear Mr. Kemper: This responds to your letters of July 15, 1996 and July 31, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Law, a Township Supervisor who serves on a three - member board may vote in order to break a deadlock on the issue of whether the township should reimburse supervisors, including him, for legal fees incurred in proceedings before the State Ethics Commission. Facts: As Solicitor for Center Township in Butler County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Dean E. Schweinsberg (Schweinsberg), who is one of the three members of the Center Township Board of Supervisors. Both Schweinsberg and a former Supervisor, Debra J. Oesterling, have requested that the Township reimburse their expenses for legal fees incurred in proceedings before the State Ethics Commission. You have submitted the Opinion, with attachments, which you prepared for the municipality on this issue. You pose two questions. You ask what role Schweinsberg may have in voting to break a deadlock if one of the other two Supervisors abstains or votes against reimbursing Schweinsberg. You further ask whether it is legal for the Township to reimburse Township Supervisors who have expended their own funds in defense of allegations of ethical misconduct if technical violations are found that do not warrant any further action by the Ethics Commission. 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 Kemoer /Schweinsberg, 96 -585 August 21, 1996 Page 2 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that you have posed two precise questions, and this Advice shall be limited to addressing those questions. As a Supervisor for Center Township in Butler County, Pennsylvania, Dean E. Schweinsberg (Schweinsberg) is a public official as that term is defined under the Ethics Law, and hence he is 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. 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 Kemper /Schweinsberg, 96 -585 August 21, 1996 Page 3 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. However, Section 3(j) carves out certain narrow exceptions under which a public official /public employee may vote despite a conflict of interest under the Ethics Law. In the event that a governmental body is unable to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then participation is permissible despite the conflict, provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Furthermore, in the case of a three - member board, a public official who has a conflict under the Ethics Law and who has properly abstained and met the disclosure requirements, may, despite his conflict, vote to break a tie vote of the other two members. Thus, in situations where he may have a conflict under the Ethics Law, Supervisor Schweinsberg may vote to break a tie vote of the other two Supervisors. On the other hand, the mere abstention of one of the other two members where such is not required by the Ethics Law, would not meet the criteria for invoking Section 3(j). Your second inquiry falls outside the parameters of the Ethics Law. The State Ethics Commission does not have the jurisdiction to rule upon the conduct of the Township, which is a governmental body, in making such reimbursements. 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. Kemper /Schweinsberg, 96 -585 August 21, 1996 Page 4 Conclusion: As a Township Supervisor for Center Township in Butler County, Pennsylvania, Dean E. Schweinsberg (Schweinsberg) is a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(j), where Schweinsberg has a conflict of interest, following his abstention and disclosure, he may nevertheless vote to break a tie vote of the remaining two Supervisors. If instead, one of the other two Supervisors abstains from voting, Schweinsberg may not participate in the vote unless the abstention of the other Supervisor is due to a conflict under the Ethics Law. 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. 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. Si rely, Vincent J. Dopko Chief Counsel Gr410