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HomeMy WebLinkAbout20-526 WoodsPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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