HomeMy WebLinkAbout20-518 Quigg
ADVICE OF COUNSEL
March 18, 2020
To the Requester:
Mr. Matthew W. Quigg, Esquire
20-518
Dear Mr. Quigg:
This responds to your letter dated February 12, 2020 (postmarked February 18,
2020, received February 21, 2020), by which you requested an advisory from the
Pennsylvania State Ethics Commission .
Issue: Whether
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as a township supervisor with regard to participating in deliberations or votes of
the township board of supervisors pertaining to a local attorneyserve as the
township solicitor, where: (1) in a private capacity, the individual is an attorney; (2) the
local attorney has referred several criminal defense and personal injury cases to the
individual; and (3) the individual anticipates paying the local attorney a referral fee when
an open personal injury case settles.
Facts: You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
Montgomery County, Pennsylvania. It is anticipated that a local attorney who practices
he Township Board of
Supervisors to serve as the Township Solicitor.
In a private capacity, you are an attorney. The Local Attorney has referred several
criminal defense and personal injury cases to you, some of which are still open. You
anticipate paying the Local Attorney a referral fee when an open personal injury case
settles.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to participating in deliberations
or votes of the Township Board of Supervisors pertaining to a proposal from the Local
Attorney to serve as the Township Solicitor.
Quigg, 20-518
March 18, 2020
Page 2
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics 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.
As a Township Supervisor, you are a public official subject to the provisions of the
Ethics Act.
Sections 1103(a) and 1103(j) 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.
(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(a), (j).
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
Quigg, 20-518
March 18, 2020
Page 3
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.
65 Pa.C.S. § 1102.
S
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
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.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would not be limited
merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section
1103(j) of the Ethics Act would require the public official/public 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.
Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
benefit for himself, his family, or his business, and then must take action in the form of
Id., 610 Pa. at 528, 22 A.3d at 231.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b),
(c), provide in part that no person shall offer or give to a public official/public employee
anything of monetary value and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action, or
judgment of the public official/public employee would be influenced thereby.
Having established the above general principles, you are advised as follows.
You would have a conflict of interest under Section 1103(a) of the Ethics Act with
regard to participating in deliberation(s) or vote(s) of the Township Board of Supervisors
pertaining to a proposal from the Local Attorney to serve as the Township Solicitor if: (1)
Quigg, 20-518
March 18, 2020
Page 4
you would be consciously aware of a private pecuniary benefit for yourself, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated; (2) your action(s) would constitute one or more specific steps to
attain that benefit; and (3) neither of the statutory exclusions to the definition of "conflict"
or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be
applicable.
As noted above, in each instance of a conflict of interest, you would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the
disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in
the event of a voting conflict.
Section 1103(b)/1103(c) of the Ethics Act would prohibit an improper
understanding with regard to a proposal from the Local Attorney to serve as the Township
Solicitor. 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.
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 are a Supervisor
(2) it is anticipated that
will submit to the Township Board of Supervisors a proposal to serve as the Township
Solicitor; (3) in a private capacity, you are an attorney; (4) the Local Attorney has referred
several criminal defense and personal injury cases to you, some of which are still open;
and (5) you anticipate paying the Local Attorney a referral fee when an open personal
injury case settles, you are advised as follows.
As a Township Supervisor, you are a public official subject to the provisions of the
et seq. You
would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to
participating in deliberation(s) or vote(s) of the Township Board of Supervisors pertaining
to a proposal from the Local Attorney to serve as the Township Solicitor if: (1) you would
be consciously aware of a private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; (2) your action(s) would constitute one or more specific steps to attain that
benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict
of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of Section
1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
Section 1103(b)/1103(c) of the Ethics Act would prohibit an improper
understanding with regard to a proposal from the Local Attorney to serve as the Township
Solicitor.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Quigg, 20-518
March 18, 2020
Page 5
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 actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code § 13.2(h). 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.
Sincerely,
Robin M. Hittie
Chief Counsel