The URL can be used to link to this page

Home My WebLink About97-569 PenningtonElaine H, Pennington 1790 County Line Road Barto, Pa. 19504 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 15, 1997 97 -569 Re: Conflict, Public Official /Employee, Candidate, Supervisor, Second Class Township, Plaintiff, Lawsuit against Township Dear Ms. Pennington: This responds to your letter of April 16,1997, 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 candidate for township supervisor from running for or holding that office when she is a plaintiff in a lawsuit filed against the township. Facts: You are seeking the office of township supervisor in Washington Township, Berks County. You are a named plaintiff in a lawsuit filed against both the township and the Washington Township Municipal Authority which is being heard by Judge Shaeffer in Reading in the Court of Common Pleas. It is anticipated that the lawsuit will end before taking office on January 1, 1998. If the litigation is not concluded by that time, you inquire whether you may hold office. You state that you would recuse yourself from anything that would involve the lawsuit if such issues would be brought up at any township meetings. You conclude by requesting a ruling prior to the primary election. 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. Pennington, 97 -569 May 15, 1997 Page 2 As candidate for township supervisor, you would become a "public official" if elected as that term is defined under the Ethics Law, and hence you 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. 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 Pennington, 97 -569 May 15, 1997 Page 3 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 voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, the fact that you are a litigant against the township would not bar you from seeking the position of township supervisor under the Ethics Law. If you are elected and the litigation is still ongoing, you would have a conflict as to matters or confidential information as to the lawsuit, such as litigation strategy, possible settlement, terms of settlement, etc. When and if such matters are before the township, to the extent that the lawsuit would have a financial impact upon you, you must recuse yourself and observe the disclosure requirements of Section 3(j) of the Ethics Law. 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 candidate for township supervisor, you would become a "public official," if elected, and then be subject to the provisions of that law. Section 3(a) of the Ethics Law does not prohibit a candidate for township supervisor from running for or holding that office when she is a plaintiff in a lawsuit filed against the township. If elected, you would have a conflict as to matters before the township involving the lawsuit as delineated above and in such instances must recuse yourself and observe the disclosure requirements of Section 3(j) noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pennington, 97 -569 May 15, 1997 Page 4 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. incerely, c�-JV °7 Vincent J. opko Chief Counsel