HomeMy WebLinkAbout20-513 SpeecePHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.00v
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
March 5, 2020
To the Requester:
Mr. David G. Speece, Jr.
Dear Mr. Speece:
20-513
This responds to your letter dated January 28, 2020, by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
Ma.TS. § 1101 et seq., would impose prohibitions or restrictions upon a township
supervisor, who is a member of a country club that is owned by the township, with regard
to participating in matters involving the country club.
Facts: You request an advisory from the Commission based upon submitted facts
Ta may be fairly summarized as follows.
You took office as a Supervisor for Exeter Township ("Township") in 2018.
The Township owns the Reading Country Club ("Country Club"), which has a
public golf course. In 2017, you worked as the General Manager of the golf operation at
the Country Club. With the exception of 2018 and 2019, you have been a member of the
Country Club since 2014. Memberships in the Country Club were not offered in 2018 and
2019, and you purchased the Country Clubs unlimited golf package for those years. You
state that as a member of the Country Club, you do not benefit financially from the
success or failure of the Country Club.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to participating in matters before
the Township Board of Supervisors that would involve the Country Club.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ef'Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
S eece, 20-513
March 5, 2020
Page 2
As a Township Supervisor, you are a public official subject to the provisions of the
Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) 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(a), 0).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 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 famil 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.
S e�ece, 20-513
March 5, 2020
Page 3
"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
immediate family is a director, officer, owner, employee or has
a financial interest.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, 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
officiallpublic employee himself, any member of his immediate family, or a business with
which he or a member of his immediate family is associated.
The use of authority of office is not limited merely to voting, but extends to any use
of authority of office including, but not limited to, discussing, conferring with others, and
lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally,
the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Based upon the submitted facts, the Country Club is not a business with which you
are associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Country Club. Therefore, you would not have a conflict of interest
under Section 1103(a) of the Ethics Act in matter(sbefore the Township Board of
Supervisors that would financially impact the Country Club but that would not financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated.
You are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, you would not have a conflict of
interest under Section 1103(a) of the Ethics Act in your capacity as a Township Supervisor
with regard to participating in matter(s) that would involve the Country Club.
In light of the above, it is not necessary to determine whether the Country Club
would be considered a "business" as that term is defined in the Ethics Act.
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 Second Class Township Code.
Conclusion: Based upon the submitted facts that: (1) you took office as a
Supervisor for Exeter Township ("Township") in 2018; (2) the Township owns the Reading
Country Club ("Country Club"), which has a public golf course; (3) in 2017, you worked
S e�ece 20-513
March 5, 2020
Page 4
as the General Manager of the golf operation at the Country Club; & with the exception
of 2018 and 2019, you have been a member of the Country Club since 2014; (5)
memberships in the Country Club were not offered in 2018 and 2019, and you purchased
the Country Club's unlimited golf package for those years; and (6) as a member of the
Country Club, you do not benefit financially from the success or failure of the Country
Club, you are advised as follows.
As a Township Supervisor, 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 se . Based
upon the submitted facts, the Country Club is not a business with which you are
associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Country Club. Therefore, you would not have a conflict of interest
under Section 1103(a) of the Ethics Act in matter(s) before the Township Board of
Supervisors that would financially impact the Country Club but that would not financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated, you would not have a conflict of interest under
Section 1103(a) of the Ethics Act in your capacity as a Township Supervisor with regard
to participating in matter(s) that would involve the Country Club.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 actualIX received
at the Commission within thin (3Yhe
days of the date o ►s vice
pursuant to 51 Pa. Code § ?3.2?Yrn-
appeal may be received at the
Commission by hand delivery, ►ted States mail, delivery service, or
bKFAX transmission f7l7-787-0806). Failure to file such an appeal at
t Commission within thirty (30) days may result in the dismissal of
the appeal.
Sincerely,
r
Robin M. Hittie
Chief Counsel