HomeMy WebLinkAbout98-598 PowellRobert A. Powell
1 126 Roberts Rd.
Media, PA 19063
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 21, 1998
98 -598
Re: Conflict; Public Official /Employee; Home Rule; Township; Council Member;
Township Manager; Use of Authority of Office.
Dear Mr. Powell:
This responds to your letter of August 25, 1998 by 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 council member from being a candidate for
and serving as township manager.
Facts: You have served as a member of the Council of Upper Providence
Township ( "Council "), Delaware County, since January 1996, which Council consists
of five members. You are interested in applying for the currently vacant position of
Township Manager.
The Upper Providence Township Manager resigned in February, 1998. You were
asked by one of the Council Members if you were interested in the Manager position.
You replied that you were and you were asked to submit a resume, which the Council
Member said he would present to the Council. Other candidates were interviewed and
you were not involved in the process. You were also interviewed. After your interview,
you asked to see the resumes of the other candidates, believing that your contribution
to the process was over and that you needed to do your duty as a Council Member.
Your request to see the other resumes raised some concerns with the other Council
Members and an opinion in the matter was requested from a PSATS- recommended law
firm, a copy of which has been submitted by you.
You were not involved in the subsequent process to choose a successful
Manager candidate, but you did participate in actions to approve payment to the law
firm as to the rendered opinion. You were told that the Council was "deadlocked" and
could not reach a decision between accepting the other candidates or you for the
position. You then removed yourself as a candidate for Township Manager and
interviewed two of the candidates, one of whom was offered but declined the
position. The position was offered to the second candidate who also declined.
In May, 1998 Council hired a consultant to pursue candidates for the Manager
position, which consultant supplied a list of candidates, and in June and July of 1998
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us
Powell, 98 -103
September 21, 1998
Page 2
contacted and arranged interviews with four of them. Council Members, including
yourself, were given copies of all resumes submitted. You participated in the interview
process.
When the interviews were complete, Council met with the consultant. At this
meeting, a Council Member suggested that you be appointed to the position of
Manager, which suggestion caused a "heated exchange." You then gave your opinion
of the four candidates which had been interviewed and stated that you felt that you
were the best candidate for the position. You asked the other Council Members if they
would vote to appoint you as Township Manager or for another candidate, to which
two replied that they would vote for you and the other two had ethical questions and
gave no answer.
Following this meeting, you telephoned the State Ethics Commission seeking
guidance. You were directed to make a written request to the Commission for advice
on the matter.
In a subsequent meeting of Council, you suggested that the search for a new
Manager be renewed. You declared that you would be a candidate, that you would not
be involved in interviewing any of the candidates, would not be aware of who the
other candidates were, and would be interviewed like any other candidate.
You assert that you received no benefit as a result of your prior activities and
will be treated like anyone else in the interview process so that your influence in the .
selection process will be no more than the other candidates for the position.
You request an advisory from the State Ethics Commission as to whether you
may apply for and serve if selected as Township Manager.
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.
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. To the extent you have inquired as to
conduct which has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
service in the positions in question, your inquiry may, and shall be addressed.
As a Council Member for Upper Providence Township, Delaware County, you
are a public official as that term is defined in the Public Official and Employee Ethics
Law ( "Ethics Law "), and hence you are subject to the provisions of that law.
Powell, 98 -103
September 21, 1998
Page 3
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.
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
Powell, 98 -103
September 21, 1998
Page 4
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 the instant matter,
pursuant to Section 3(a) of the Ethics Law, 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.
The Commission has held that a public official /public employee may not use the
authority of office or confidential information to advance or effectuate his appointment •
to a compensated position. See, Lewis, Orders No. 876, 876 -R, affirmed, Lewis v.
SEC, Memorandum Opinion filed by Pennsylvania Commonwealth Court at 1282 C.D.
1993 on June 22, 1994.
As to your situation, although Section 3(a) of the Ethics Law would not prohibit
you from applying for the position of Township Manager, you would have a conflict
as to the process. Thus, you could not advocate for or against any candidate and could
not participate or vote as to the process. Further, you must 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 a Council Member for Upper Providence Township, Delaware
County, you are subject to the provisions of the Ethics Law. Although Section 3(a)
of the Ethics Law would not prohibit you from applying for the position of Township
Manager, you would have a conflict as to the process and could not participate or vote
as to the selection of an applicant. The disclosure requirements of Section 3(j) must
be satisfied. Any past conduct has not been addressed in this advisory. 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.
Powell, 98 -103
September 21, 1998
Page 5
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.
erely,
incent Dopko
Chief Counsel