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Home My WebLink About96-601 BearRichard D. Bear 910 Easy Road Carlisle, PA 17013 Dear Mr. Bear: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 22, 1996 96 -601 Re: Conflict, Public Official /Employee, Township, Supervisor, Diesel Mechanic, Department of Transportation, Bureau of Maintenance and Operations, Equipment Division, Voting on PennDOT funds /programs. This responds to your letter of September 14, 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 who is also employed by the Department of Transportation, Bureau of Maintenance and Operations, as a diesel mechanic as to voting on PennDOT funds or programs. Facts: As a Supervisor and Chairman of the Board in Lower Frankford Township, Cumberland County, Pennsylvania, you request an advisory from the State Ethics Commission for the reason that a fellow board member believes you have a conflict of interest. You are employed by the Department of Transportation ( "PennDOT "), Bureau of Maintenance and Operations, Equipment Division, as a Diesel Mechanic. You instruct newly -hired mechanics as well as provide other technical training for department employees. Your specific questions are as follows: (1) Can you vote on spending any money received from PennDOT? (2) Can you vote on programs offered by PennDOT? (3) Can you vote on spending Liquid Fuel Fund Monies? (4) Can you vote on Township programs with funding or assistance from the Department of Transportation? Bear, 96 -601 October 22, 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 Lower Frankford Township, Cumberland County, 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 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. Bear, 96 -601 October 22, 1996 Page 3 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. 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. In applying Section 3(a) of the Ethics Law to the four questions you pose, there could not be a conflict on your part unless your action as a Supervisor would result in a private pecuniary benefit to yourself, a member of your immediate family or a business with which you or your immediate family is associated. From the submitted Bear, 96 -601 October 22, 1996 Page 4 facts which reflect that you are a diesel mechanic with PennDOT, there is nothing of record to establish that taking any of the four listed actions as Supervisor would result in a financial gain to you. Accordingly, based upon the foregoing factual assumptions, you are advised that you would not have a conflict as a Supervisor in voting on PennDOT funds, PennDOT programs, Liquid Fuel Fund monies or Township programs that are funded or assisted by PennDOT. 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. Conclusion: As a Supervisor for Lower Frankford Township, Cumberland County, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, based upon the above factual assumptions, you would not have a conflict as a Supervisor in voting on PennDOT funds, PennDOT programs, Liquid Fuel Fund monies or Township programs that are funded or assisted by PennDOT. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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,a opk • Chief Counsel