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HomeMy WebLinkAbout98-541 ChappellRaymond Chappell 117 Oak St. Imperial, PA 15126 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 8, 1998 98 -541 Re: Conflict, Public Official /Employee, Former Township Supervisor, Authority Member, Motion, Seconding, Vote, Appointing Self, Compensation. Dear Mr. Chappell: This responds to your letter of March 3, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law would present any prohibition or restrictions upon an authority member who, in his prior capacity as a township supervisor, seconded a motion and voted to appoint himself to serve on an authority without compensation as long as he would hold a position on the board of supervisors, and who now seeks to be compensated as an authority member since he is no longer a supervisor. Facts: As a Member of the Board of Directors of the Findlay Township Water Authority (Authority), you request an advisory from the State Ethics Commission. You previously served as an elected member of the Findlay Township Board of Supervisors. Prior to the expiration of your term as Supervisor, you were appointed to serve on the Authority to complete the unexpired term of an Authority Member who had passed away. The appointment occurred at the regular meeting of the Findlay Township Board of Supervisors on November 12, 1997, which was seven weeks before your term as Supervisor was to expire. The Findlay Township Board of Supervisors is a three - member Board. Only two of the Supervisors, including you, were present at the November 12, 1997 meeting. Danice Brinkley, the other Supervisor who was at the meeting, made a motion to appoint you to the Authority Board. You seconded the motion for the purpose of putting it on the floor for a vote. You have submitted a copy of page three of the meeting minutes which reflects that you also participated in the vote to appoint yourself to the Authority. Specifically, the minutes state, in pertinent part: A vacancy exists on the Water Authority Board due to the recent death of Andrew Schmella. Mrs. Brinkley moved to appoint Raymond Chappell to the Findlay Township Water Authority Board to fill the unexpired term of Andrew Schmella without Chappell, 98 -541 April 8, 1998 Page 2 compensation as long as he hold [sic] a position on the Board of Supervisors. Mr. Chappell seconded. 2 Ayes. 1 Absent. Motion carried. Minutes of November 12, 1997 Board of Supervisors Regular Meeting, at 3. You assert that it is now your understanding that an abstention would have been more appropriate, but that at the time, it was your "mistaken" belief that you could not abstain, and that two votes would be needed to represent a majority of all votes cast for the motion to pass. You state that you were unaware that under Roberts Rules of Order, an abstention vote is not included in the total number of votes cast for the purpose of a majority, and that one vote would have been sufficient, with your abstention, for the motion to pass and for you to become a member of the Authority Board. You state that regardless, you thought you were acting properly in that the vote to appoint you to the Authority Board included that there would be no compensation taken during the time you served on the Board of Supervisors. Finally, you state that even if the other Supervisor had been present and even if he had voted in the negative, pursuant to the Ethics Law, you could have voted to break the tie with disclosure of the conflict. As of January, 1998, you are no longer serving on the Board of Supervisors of Findlay Township. The question which you pose is whether, under the circumstances which you have submitted, you may now accept compensation as a Member of the Board of the Authority. You note that compensation was set by the Board of Supervisors at a maximum of $80 per month, based upon actual attendance at the regular meeting and workshop at a rate of $40 per meeting. You state that the money involved is not the issue, but that you want to be assured that you are properly following the law. 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 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Law, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. As a Member of the Findlay Township Water Authority (Authority), you are a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence you are subject to the provisions of that law. Likewise, in your prior capacity as a Township Supervisor for Findlay Township, you were a public official subject to the Ethics Law. Section 3(a) of the Ethics Law provides: Chappell, 98 -541 April 8, 1998 Page 3 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 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 Chappell, 98 -541 April 8, 1998 Page 4 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. Before addressing the question which you have posed under the Ethics Law, it is initially noted that a concern exists as to whether your submitted understanding of the impact of Roberts Rules of Order is legally correct. Specifically, it is noted that the Second Class Township Code provides as follows: §65603. Monthly meetings; quorum The board of supervisors shall meet for the transaction of business at least once each month at a time and place determined by the board of supervisors. A quorum is two members of a three - member board of supervisors or three members of a five - member board of supervisors. An affirmative vote of .a majority of the entire board of supervisors at a public meeting is necessary in order to transact any business. 53 P.S. §65603. (Emphasis added.) It would seem that a question would exist as to whether only one of the two members present at the November 12, 1997 meeting would constitute the requisite "majority" to appoint you to the Authority Board. However, the issue need not be resolved in order to answer your inquiry under the Ethics Law. In applying the above provisions of the Ethics Law, pursuant to Section 3(a), a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Subject to certain narrow statutory exceptions (which are not applicable here), the use of the authority of one's office to appoint oneself to a compensated position would constitute a violation of Section 3(a) of the Ethics Law. In Lewis, Order No. 876, the State Ethics Commission held, jnter ia, that a member of a township council violated Section 3(a) of the Ethics Law when he cast the deciding vote in a vote of 3 -2 to appoint himself to the compensated position of Executive /Mayor. Lewis thereafter requested reconsideration which was denied. Lewis, Order No. 876 -R. Lewis appealed. In affirming the Commission's denial of reconsideration, Commonwealth Court ruled, inter alia, that the State Ethics Commission did not err in finding a violation of Section 3(a) by Lewis when he cast the deciding vote to appoint himself to a compensated position. Lewis v. State Ethics Commission, Memorandum Opinion, No. 1282 C.D. 1993 (Pa. Commw. Ct. June 22, 1994). In so holding, Commonwealth Court cited as support for its decision, Koslow v. State Ethics Commission, 540 A.2d 1374 (Pa. Commw. Ct. 1988), allocatur den., 520 Pa. 609, 553 A.2d 971 (1988). Chappell, 98 -541 April 8, 1998 Page 5 In Koslow, supra, Commonwealth Court affirmed an Order of the State Ethics Commission which held that a township commissioner violated Section 3(a) of the Ethics Law when he participated in appointing himself to a compensated position as a member of an authority board. Commonwealth Court's Opinion in Koslow is most instructive: The controlling principle developed by our case law is that a council member is disqualified from voting in anv matter or proceeding in which he or she has a personal interest McAdoo Borough v. Pennsylvania Labor Relations Board, 506 Pa. 422, 485 A.2d 761 (1984); Consumer Education and Protective Association v. Schwartz, 495 Pa. 10, 432 A.2d 173 (1981); Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301 (1973) (plurality opinion). By casting the controlling vote in favor of his appointment. Koslow violated this clear precept of public policy. Koslow's vote was therefore illegal and void and could not be counted in computing a quorum or majority. Raynovich, 450 Pa. at 395, 299 A.2d at 304. Discounting Koslow's vote, the board's vote tied at 2 to 2: Koslow's appointment to the municipal authority was not supported by the majority of the board and therefore failed. Because Koslow never had a lawful appointment as an authority member, he was not entitled to collect the monthly salary allocated by law for such members. Hence. by receiving financial compensation for a public office which he did not lawfully hold. Koslow violated section 403(a) of the State Ethics Act. in that he used his township office to obtain compensation for which he had no lawful entitlement. Accordingly, the decision of the commission is affirmed. Koslow v. State Ethics Commission, 540 A.2d at 1376. (Emphasis added.) Moreover, a public official need not cast the deciding vote in order for a violation of Section 3(a) to be found. In Sny.er v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), Commonwealth Court affirmed an Order of the State Ethics Commission which had found that a township supervisor who had participated and voted on development issues when he had actual or anticipated business relationships as to such developments had violated Section 3(a) of the Ethics Law. Commonwealth Court rejected the township supervisor's arguments that in order for a conflict to exist, he would have had to have cast the deciding vote. The Court stated: We are likewise unconvinced by the fact that Snyder's vote was never controlling or necessary for a quorum. Snyder violated the Ethics Law by discussing and voting on issues in which he had a private pecuniary interest, not by affecting the outcome of those votes. Similarly, it is irrelevant whether Snyder improperly used his influence as a Supervisor to gain the Colonial Commons and Blue Meadow contracts; Snyder may have been able to obtain the jobs even if he were not a Supervisor, but as a Supervisor, he should not have considered and voted on issues involving his personal business dealings. Snyder v. State Ethics Commission, 686 A.2d. at 849. Under the facts which you have submitted, your seconding of the motion and your vote to appoint yourself to the Authority were uses of the authority of your office as Supervisor. See, Juliante, Order No. 809. Such actions are past conduct, and since Chappell, 98 -541 April 8, 1998 Page 6 advisories do not review the propriety or impropriety of past conduct, this advisory shall not determine the propriety or impropriety of your past actions per se. However, to the extent that you would, in the future, receive compensation as an Authority Member, you are advised that such would constitute a private pecuniary benefit to you in contravention of Section 3(a) of the Ethics Law. The fact that you were not to receive such compensation during the first seven weeks of your appointment to the Authority Board would have no legal relevance. Clearly, you would be receiving compensation during the remainder of your term, and your receipt of that compensation would be prohibited within the Lewis, Koslow, and Snyder precedents above. 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 Second Class Township Code. Conclusion: As a Member of the Board of Directors of the Findlay Township Water Authority (Authority), you are a public official subject to the provisions of the Ethics Law. Likewise, in your prior capacity as a Township Supervisor for Findlay Township, you were a public official subject to the Ethics Law. Your seconding of the motion and your vote to appoint yourself to the Authority were uses of the authority of your office as Supervisor. To the extent that you would, in the future, receive compensation as an Authority Member, such would constitute a private pecuniary benefit to you in contravention of Section 3(a) of 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. rely, Vi cent `jDopko Chief Cou sel