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HomeMy WebLinkAbout96-595 StuartBrian Stuart HC1 Box 148F Greeley, PA 18425 Dear Mr. Stuart: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1996 96 -595 Re: Conflict, Public Official /Employee, Township, Supervisor, Volunteer Fire Department, Vote. This responds to your letter of August 26, 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 a township supervisor as to voting on matters involving municipal emergency services where the supervisor is a member of one of the volunteer fire departments. Facts: As a Supervisor in Lackawaxen Township in Pike County, Pennsylvania, you request an advisory from the State Ethics Commission. In your municipality there are four separate fire departments, a rescue and a volunteer ambulance service. You state that the fire departments receive an allocation from the township through revenues generated from a 1996 mileage rate of 850 which, when distributed four ways, equates to approximately $25,000 per company. The ambulance receives an allocation and the township is working on establishing allocation through the same means with the rescue. Each of the emergency services in Lackawaxen Township is charted and operates in accord with its bylaws. You state that the Supervisors are currently establishing territories, funding and participating in quarterly meetings to maximize communications between the services but are not involved in the day -to -day operations of these organizations. Your specific inquiry is whether you, as a Supervisor, would be permitted to participate on fire related issues since you are a member of one of the volunteer fire departments. Stuart, 96 -595 September 26, 1996 Page 2 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 Lackawaxen Township in Pike County, 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. "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. Stuart, 96 -595 September 26, 1996 Page 3 "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(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. 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. Stuart, 96 -595 September 26, 1996 Page 4 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. Depending upon the circumstances in a given case, a fire company may be viewed as part of a governmental body such as a township, or as a private entity meeting the definition of "business" as set forth in the Ethics Law. If a fire company is part of the governmental body in which the public official /public employee serves, it may generally be said that a private pecuniary benefit to the fire company alone would not present a conflict of interest for the public official. Only if there were additional circumstances, such as if the public official /public employee or a member of his immediate family would also derive a private pecuniary benefit, could there be a conflict of interest. If, on the other hand, the fire company is a "business," there is the potential for a conflict of interest solely based upon a private pecuniary benefit to the fire company, because the fire company is then an entity separate from the governmental body. The issue becomes whether the fire company is a "business with which [the public official /public employee] is associated," as that term is defined in the Ethics Law. That definition would include any business for which the public official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. Among the most significant factors in determining the status of a fire company is the degree to which the fire company is funded and controlled by the governmental body, sgg, 53 P.S. §65704, or alternatively raises its own funds and governs itself. In this case, since you are a member and do not hold officer positions with the fire company, the status of the fire company is irrelevant. Even if it were a "business," the fire company would not be a business with which you are associated as that term is defined in the Ethics Law. A conflict of interest under the Ethics Law would only arise if you, member(s) of your immediate family, or businesses with which you or member(s) of your immediate family are associated (not the fire company) would receive a private pecuniary benefit. It is factually assumed that you are not a director, owner, employee, or have a financial interest in the fire company. Based upon the facts which you have submitted, it would appear that although the Township provides some financial support to the fire company, the fire company is not a department of the Township and is not controlled by the Township. Under the particular circumstances in this case, your volunteer fire department would not be viewed as part of the Township. Based upon the above factual assumptions and qualifications, you would not have a conflict as to voting on fire related issues. 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. Stuart, 96 -595 September 26, 1996 Page 5 Conclusion: As a Supervisor for Lackawaxen 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 voting on fire related issues when he is a member of one of the volunteer fire departments with the Township provided the Supervisor would not receive any private pecuniary benefit and provided the Supervisor is not a director, officer, owner, employee, or has a financial interest in the fire company. 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. erely, Vincent J. op o Chief Counsel