HomeMy WebLinkAbout97-636 AntionDavid R. Antion
PO Box 492
Claysville, PA 15323
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 17, 1997
97 -636
Re: Conflict, Public Official /Employee, School Director, Township Auditor - Elect,
Simultaneous Service, Landlord, Building Rental to Township.
Dear Mr. Antion:
This responds to your letter of November 14, 1997 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
prohibition or restrictions upon a School Director regarding his simultaneous service
as Township Auditor and also regarding his rental of a building to the Township for
profit.
Facts: As a School Director for the McGuffey School District and as a Buffalo
Township Auditor - Elect, you request an advisory from the State Ethics Commission.
Specifically, you pose the following questions:
1. Whether, as a School Board Director serving for no pay, you may
simultaneously hold the office of Township Auditor for profit;
2. Whether, as a School Board Director serving for no pay, you may
simultaneously hold the office of Township Auditor for no pay;
3. Whether, as a landlord who rents a building to the Township for profit, you may
serve as an elected Township Auditor to that Township for profit; and
4. Whether, as a landlord who rents a building to the Township for profit, you may
serve as Township Auditor to that Township for no pay.
It is noted that Buffalo Township is a Second Class Township in Washington
County, Pennsylvania.
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
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December 17, 1997
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), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
Both as a School Director for McGuffey School District and as a Buffalo
Township Auditor, you would be considered a public official as that term is defined in
the Public Official and Employe Ethics Law ( "Ethics Law "), and hence in each such
capacity you would be subject to the provisions of the Ethics 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.
"Business with which he is associated." Any
business in which the person or a member of the person's
An i n, 97 -636
December 17, 1997
Page 3
immediate family is a director, officer, owner, employee or
has a financial interest.
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. "Contract" shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters
in consideration of his current public employment with the
Commonwealth or a political subdivision.
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(f) does not operate to make contracting with the governmental body
permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 3(f) requires that an
"open and public process" be observed as to the contract with the governmental body.
Pursuant to Section 3(f), an "open and public process" includes:
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to be
able to prepare and present an application or proposal;
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December 17, 1997
Page 4
(3) public disclosure of all applications or proposals considered; and
(4) public disclosure of the contract awarded and offered and accepted
Section 3(f) of the Ethics Law also requires that the public official /employee may
not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
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.
In each instance of a conflict, 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 voting is permissible provided
the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Law to your first and second
inquiries regarding simultaneous service, it is initially noted that the General Assembly
has the constitutional power to declare by law which offices are incompatible. Pa.
Const. Art. 6, §2. Although the State Ethics Commission does not have the express
statutory jurisdiction to interpret such other laws, it may review the Ethics Law to
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December '17, 1997
Page 5
determine that a conflict exists based upon the statutory incompatibility. King,
Opinion No. 85 -025.
A conflict of interest exists under the Ethics Law where a pecuniary benefit or
financial gain (such as salary, benefits, and the like) is derived as a result of holding
incompatible positions simultaneously. The Commission has determined that if a
particular statutory enactment prohibits an official from receiving a particular pecuniary
benefit or financial gain, then that official's receipt of same, through the authority of
public office, is unauthorized in law and hence, contrary to Section 3(a) of the Ethics
Law.
In this case, in order to determine whether a particular pecuniary benefit or
financial gain is prohibited by law, the following provisions must be reviewed:
§ 3 - 322. Eligibility; incompatible offices
Any citizen of this Commonwealth, having a good moral character,
being eighteen (18) years of age or upwards, and having been a resident
of the district for at least one (1) year prior to the date of his election or
appointment, shall be eligible to the office of school director therein:
Provided, That any person holding any office or position of profit under
the government of any city of the first class, or the office of mayor, chief
burgess, county commissioner, district attorney, city, borough, or
township treasurer, member of council in any municipality, township
commissioner, township supervisor, tax collector, assessor, assistant
assessor, any comptroller, auditor, constable, executive director or
assistant executive director of an intermediate unit, supervisor, principal,
teacher, or employe of any school district, shall not be eligible as a school
director in this Commonwealth... .
24 P.S. §3 -322 (Emphasis added).
§6. Office of constable and township or borough auditor
No person hereafter elected shall be capable of holding and
exercising the office of school director, constable, path- master or
commissioner of roads, and that of township or borough auditor.
65 P.S. §6.
The above provisions of law appear to forbid simultaneous service in the
positions in question. Any financial gain or pecuniary benefit that you as a public
official would receive while simultaneously holding these positions would be a gain
other than compensation provided for by law. King, Opinion 85 -025. Therefore,
simultaneous service in the positions of School Director and Township Auditor would
be contrary to Section 3(a) of the Ethics Law to the extent a pecuniary benefit or
financial gain would be received that would be unauthonzed based upon the foregoing
incompatibility provisions.
To the extent you would simultaneously hold the aforesaid positions without
being compensated or otherwise financially benefitted in either position, the Ethics Law
itself would not apply to restrict the simultaneous service in that there would be no
Antion, 97 -636
December 17, 1997
Page 6
element of a prohibited private pecuniary benefit. However, as noted, it would appear
that the above, other provisions of law may forbid such simultaneous service without
regard to compensation, and so, it is recommended that you seek legal advice in that
regard.
Turning to your third and fourth specific inquiries, by which you ask whether
you may serve as an elected Township Auditor to Buffalo Township, either for profit
or without pay, where you are, in your private capacity, a landlord who rents a building
to the Township, you are advised as follows.
Under the Ethics Law, it is legally irrelevant whether you are compensated as
a Township Auditor in addressing your third and fourth specific inquiries.
Pursuant to Section 3(a), in your public capacity as Township Auditor, you
would have a conflict of interest in performing your official duties as to the Township's
payments to you as a landlord. Therefore, you would be required to abstain from that
portion of the audit and to satisfy the disclosure requirements of Section 3(j) as set
forth above.
As for Section 3(f), you are advised that Section 3(f) of the Ethics Law does not
operate to make contracting with the governmental body permissible where it is
otherwise prohibited. Rather, where a public official /public employee, his spouse or
child, or a business with which he, his spouse or child is associated, is otherwise
appropriately contracting with the governmental body, or subcontracting with any
person who has been awarded a contract with the governmental body, in an amount
of $500.00 or more, Section 3(f) requires that an "open and public process" be
observed as to the contract with the governmental body. Pursuant to Section 3(f), an
"open and public process" includes:
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to be
able to prepare and present an application or proposal;
(3) public disclosure of all applications or proposals considered; and
(4) public disclosure of the contract awarded and offered and accepted.
Section 3(f) of the Ethics Law also requires that the public official /public
employee may not have any supervisory or overall responsibility as to the
implementation or administration of the contract with the governmental body.
Where Section 3(f) applies, its requirements must be strictly observed. If you
would serve as a Buffalo Township Auditor, any contract valued at $500 or more
between you and Buffalo Township would be subject to the restrictions of Section
3(f). This would be so not only as to new contracts but also as to renewals or
modifications of pre- existing contracts.
Parenthetically, although the contracting in question would not be prohibited
under the Ethics Law provided the requirements of Sections 3(a), 3(f), and 3(j) are
satisfied, a problem may exist as to such contracting under the respective code.
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December 17, 1997
Page 7
In the instant situation, the Second Class Township Code provides as follows:
§68102. Letting contracts
•
(i) No township official, either elected or appointed, or
township employe who knows, or who by the exercise of
reasonable diligence could know, shall be interested to any
appreciable degree, either directly or indirectly, in any
contract for the sale or furnishing of any supplies or
materials for the use of the township or for any work to be
done for the township involving the payment by the
township of more than five hundred dollars ($500) in any
year unless the contract is awarded through the public bid
process. This limitation does not apply if the officer or
appointee of the township is an employe of the person, firm
or corporation to which the money is to be paid in a
capacity with no possible influence on the transaction and
the officer cannot possibly be benefited thereby, either
financially or otherwise. If a supervisor is within this
exception, the supervisor shall so inform the board of
supervisors and refrain from voting on the payments and
shall in no manner participate in the contract. Any official
or appointee who knowingly violates this provision is
subject to surcharge to the extent of the damage shown to
be sustained by the township, is ousted from office or
employment and commits a misdemeanor of the third
degree.
53 P.S. §68102(i).
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.
Conclusion: Both as a School Director for McGuffey School District and as a
Township Auditor for Buffalo Township, you would be considered a public official
subject to the provisions of the Ethics Law. You may not, consistent with Section 3(a)
of the Ethics Law, simultaneously serve in the positions of School Director for
McGuffey School District and Township Auditor for Buffalo Township where you
would be compensated or otherwise financially benefitted in either capacity. Section
3(a) of the Ethics Law would not apply to preclude simultaneous service if you would
not be paid or otherwise financially benefitted in either capacity. However, it is
recommended that you seek legal advice as to the restrictions of the other provisions
of law set forth herein should you intend to hold both positions simultaneously without
such compensation. You would have a conflict of interest pursuant to Section 3(a) of
the Ethics Law in performing your duties as a Buffalo Township Auditor with regard
to payments to yourself as a landlord who rents a building to the Township. In each
instance of a conflict of interest, you would be required to abstain from participation
and to satisfy the disclosure requirements of Section 3(j) as set forth above.
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December 17, 1997
Page 8
Contracting between you and Buffalo Township would not be prohibited under the
Ethics Law provided the regyirements of Sections 3(a), 3(f), and 3(j) would be
satisfied. It is recommended that you seek legal advice as to the applicability of the
Second Class Township Code. 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 1. 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.
cerely,
t"--o-do i
•
Vincent J. Dopko
Chief Counsel