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To the Requester:
Ms. Angela Woods
Dear Ms. Woods:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
May 19, 2020
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
20-526
This responds to your letter dated May 9, 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
7a. TS. Ll 101 et sec.., would impose requirements upon a Member of Council for the
Town ofcCandless ("Town") with regard to disclosing her husband's employment as
the Vice President of Supply Chain Management for the Applied Products and
Technology segment of Evoqua Water Technologies, where: 81) Evoqua Water
Technologies makes products for wastewater treatment; (2) the Mcandless Township
Sanitary Authority provides wastewater services to the down; and (3) Town Council
appoints Members to the Board of the McCandless Township Sanitary Authority.
Facts: As a Member of Town Council, you request an advisory from the
emission based upon submitted facts that may be fairly summarized as follows.
Your husband is employed as the Vice President of Supply Chain Management for
the Applied Products and Technology segment of a business named "Evoqua Water
Technologies" ("Evoqua"). As part of his employment with Evoqua, your husband has
responsibilities pertaining to seventeen manufacturing facilities, including one which
makes products for wastewater treatment.
The McCandless Township Sanitary Authority ("Authority") provides wastewater
services to the Town. The Town does not oversee the day-to-day operations of, or make
purchasing decisions for, the Authority. Town Council appoints Members to the Authority
Board. You state that if a need to fill a position on the Authority Board would arise, you
plan to recuse yourself from the discussion and abstain from the vote with regard to filling
the position.
Woods, 20-526
May 19, 2020
Page 2
The narrow question that you have posed is at what times, and by what manner,
would the Ethics Act require you to disclose your husband's employment with Evoqua.
You state that you have received conflicting information as to whether a statement
disclosing your husband's employment with Evoqua should be attached to your
Statement of Financial Interests or to the minutes of a Town Council meeting when you
would need to abstain from voting as a result of a conflict of interest.
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.
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
As a Member of Town Council, 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), (j).
Woods, 20-526
May 19, 2020
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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
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
11030 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.
Having established the above general principles, you are advised as follows.
Woods, 20-526
May 19, 2020
Page 4
Your husband is a member of your "immediate family" as that term is defined in
the Ethics Act. Evoqua is a business with which your husband is associated in his
capacity as an employee. Subject to the statutory exclusions to the definition of "conflict"
or "conflict of interest as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as a
Member of Town Council in matters that would financially impact you, your husband, or
Evoqua.
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
11030) of the Ethics Act would be applicable. Additionally, you would be required to
satisfy the disclosure requirements of Section 1103Q) of the Ethics Act each time a voting
conflict would arise, such that prior to the vote being taken, you would be required to
publicly announce and disclose the nature of your 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. 65 Pa.C.S. § 11030).
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 Town of McCandless Home Rule Charter.
Conclusion: Based upon the submitted facts that: (1) you are a Member of
Council or the Town of McCandless ("Town"); (2) your husband is employed as the Vice
President of Supply Chain Management forte Applied Products and Technology
segment of a business named "Evoqua Water Technologies" ("Evoqua"); (3) as part of
his employment with Evoqua, your husband has responsibilities pertaining to seventeen
manufacturing facilities, including one which makes products for wastewater treatment;
(4) the McCandless Township Sanitary Authority ("Authority") provides wastewater
services to the Town; (5) the Town does not oversee the day-to-day operations of, or
make purchasing decisions for, the Authority; (6) Town Council appoints Members to the
Authority Board; and if a need to fill a position on the Authority Board would arise, you
plan to recuse yoursellf from the discussion and abstain from the vote with regard to filling
the position, you are advised as follows.
As a Member of Town Council, 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 sec.. Your
husband is a member of your "immediate family" as that term is defined in the Ethics Act.
Evoqua is a business with which your husband is associated in his capacity as an
employee. Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest as a Member of
Town Council in matters that wouldfinanciallyimpact you, your husband, or Evoqua.
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
11030) of the Ethics Act would be applicable. Additionally, you would be required to
satisfy the disclosure requirements of Section 1103Q) of the Ethics Act each time a voting
conflict would arise, such that prior to the vote being taken, you would be required to
publicly announce and disclose the nature of your 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. 65 Pa.C.S. § 11030).
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Woods, 20-526
May 19, 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 actuaII14 received
at the Commission within thirt (30 days of the date o this vice
pursuant to 51 Pa. Code j 13.2(yh). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
by FAX transmission f717-787-0806). 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