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HomeMy WebLinkAbout99-638 RumlerDennis E. Rumler Limerick Township Supervisor 42 Rumler Drive Linfield, PA 19468 Dear Mr. Rumler: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 16, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -638 Re: Conflict; Public Official /Employee; Supervisor; Fire Marshall; Township; Vote; Budget. This responds to your letter of November 14, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a township supervisor as to voting on the township's budget, which provides for the compensated position of a full -time fire marshall, where the supervisor intends to apply for that position, and whether, under these circumstances, the supervisor may remain on the board of supervisors while applications for the fire marshal) position are being accepted and the position is being filled. Facts: In 1986, you were appointed to the part -time position of Fire Marshall of Limerick Township. In 1997, you were elected to the Board of Supervisors of Limerick Township, ( "Board ") a five - member board. It was not until you were elected to the Board that you discovered that the two positions of Supervisor and Fire Marshall were conflicting. In 1998, you were appointed to the nonpaying position of Assistant Fire Marshall in a non - enforcement capacity. You presently continue as Assistant Fire Marshall. For over six years, you have envisioned the creation of a full -time Fire Marshall position for Limerick Township ( "Township "), a position which you state is much needed in your rapidly growing Township. The Township has included this position in its budget for the year 2000. You intend to apply for this position which will be publicly advertised. You request an advisory as to the following specific questions: 1) Whether you, as Supervisor, would have a conflict as to voting to pass the budget and would be required to abstain; 2) As to the reorganization meeting in January, whether you may remain on the Board while applications for the full -time Fire Rumler, 99 -638 December 16, 1999 Page 2 Marshall position are being accepted and the position is being filled; and 3) Whether you may remain as a Board Member if you are not awarded the full -time Fire Marshall position. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(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 Act, 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 Act violations by a person who is subject to the Ethics Act. 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 conduct, your inquiry may, and shall be addressed. As a Supervisor for Limerick Township, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1 103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term 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 Rumler, 99 -638 December 16, 1999 Page 3 65 Pa.C.S. §1102. 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. In addition, Sections 1 103(b) and 1 103(c) of the Ethics Act 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 judgment 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 1 103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. (j) Voting conflict. - -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. 65 Pa.C.S. §1103(j). in each instance of a conflict, Section 1103(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. Rumler, 99 -638 December 16, 1999 Page 4 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 Act, 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 Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. Your specific questions shall now be addressed. As for your first inquiry, it is reiterated that the propriety of your past conduct which includes the preparation of the budget and the determination of its amount may not be addressed in this advisory. As for your prospective conduct, you are advised as follows. The use of the authority of your office as a Township Supervisor or confidential information obtained by you from being in that position to vote to approve the Township's budget which provides for a compensated position for which you intend to apply, would transgress Section 1 103(a) of the Ethics Act. You would have a conflict because your vote would affect the availability of funds for a position which you seek, without which funds, the position would not exist. In Snyder v. State Ethics Commission, 68 A.2d 843 (Pa. Commw. Ct. 1996), the Commonwealth Court affirmed an Order of the State Ethics Commission which had found that a township supervisor violated Section 3(a) of the Ethics Law by discussing and voting on issues in which he had a private pecuniary interest. Based on Snyder, you would have a conflict of interest under Section 1103(a) of the Ethics Act in voting on the Township's budget and participating in discussions related to that matter because such actions would result in a prohibited pecuniary benefit to you. In such an instance, you would be required to abstain and observe the disclosure requirements of Section 1 103(j) of the Ethics Act. Further, it makes no difference that you merely intend to apply for the Fire Marshall position and have not actually done so at this time. The Commission has held that if a financial interest that would form the basis of a conflict for a public official either exists or can be reasonably and legitimately anticipated to develop, the public official has a conflict, must abstain from participating in the matter, and must satisfy the disclosure requirements of the Ethics Act. See, Snyder, Order No. 979 -2; Sowers, Opinion 80 -050. However, where the public official's interest would be considered remote, the Ethics Act would not preclude him or her from voting on the matter. See, Markham, Opinion 85 -013; Amato, Opinion 89 -002; Garner, Opinion 93 -004 Having established the above principals, be advised that not only would Section 1 103(a) of the Ethics Act prohibit you from voting on the Township's budget, you would also be precluded from participating in discussions related to that matter. This is true because use of authority of office is more than the mere mechanics of voting. It encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular benefit. As for your second and third inquiries, the Ethics Act would not preclude you from remaining on the Board of Supervisors while applications for the Fire Marshall position are being accepted and the position is being filled or if you are not awarded Rumler, 99 -638 December 16, 1999 Page 5 the position. However, as the Township Supervisor, you would be required to observe the restrictions of the Ethics Act as set forth above. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Supervisor for Limerick Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The propriety of your past conduct as it relates to Limerick Township's budget may not be addressed in this advisory. As for your prospective conduct submitted for review, the use of the authority of your office as a Township Supervisor or confidential information obtained by you from being in that position to vote on the Township's budget which provides for the compensated position of Fire Marshall for which you intend to apply, would transgress Section 1 103(a) of the Ethics Act. You would have a conflict of interest under Section 1103(a) of the Ethics Act in voting on the budget and participating in discussions related to that matter because such actions would result in a prohibited pecuniary benefit to you. In each instance of a conflict of interest, you would be required to abstain from any participation and to publicly disclose your abstention and the reasons for the same both orally and by filing a written memorandum with the person in charge of recording the minutes. The Ethics Act would not preclude you from remaining on the Board of Supervisors while applications for the Fire Marshall position are being accepted and the position is being filled or if you are not awarded the position. However, as the Township Supervisor, you would be required to observe the restrictions of the Ethics Act as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), an 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, provided 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 I. 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. Ify `1 incent J. opko Chief Counsel