HomeMy WebLinkAbout20-538 Martin
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
October 14, 2020
To the Requester:
Richard L. Martin
20-538
Dear Richard L. Martin:
This responds to your emails of September 11, 2020, and September 14, 2020, by
which you requested an advisory from the Pennsylvania State Ethics Commission
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a township
supervisor with regard to voting on legal issues or other matters involving his
stepdaughter.
Facts: You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
shington
County, Pennsylvania. The Township Board of Supervisors consists of five Members.
You state that your stepdaughter was employed with the Township and that there
are legal issues pending which need to be voted upon by the Township Board of
Supervisors. Your stepdaughter does not reside with you, and she has been financially
independent from her mother and you for many years. You state that you have not
adopted your stepdaughter.
Based upon the above submitted facts, you seek guidance as to whether the Ethics
Act would impose prohibitions or restrictions upon you with regard to voting on legal
issues or other matters that would involve your stepdaughter.
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.
Martin, 20-538
October 14, 2020
Page 2
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 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.
Martin, 20-538
October 14, 2020
Page 3
"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.
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.
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 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.
Child The term includes adopted and biological children.
51 Pa. Code § 11.1.
Having established the above general principles, you are advised as follows.
S
thics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest as a Township
Supervisor in matters that would financially impact you, a member of your immediate
family, or a business with which you or a member of your immediate family is associated.
Your stepdaughter is not a member of your
the Ethics Act and the Regulations of the State Ethics Commission. Cf., Pulice v. State
Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732
A.2d 1211 (1998) (Holding that a relative not encompassed by the family relationships
in that case, a son-in-
lawwould not be considered a member of immediate family).
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 with regard to voting on legal issues or other matter(s)
that would involve your stepdaughter.
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.
Martin, 20-538
October 14, 2020
Page 4
Conclusion: Based upon the submitted facts that: (1) you are a Supervisor for
shington County, Pennsylvania; (2) the
Township Board of Supervisors consists of five Members; (3) your stepdaughter was
employed with the Township, and there are legal issues pending which need to be voted
upon by the Township Board of Supervisors; (4) your stepdaughter does not reside with
you, and she has been financially independent from her mother and you for many years;
and (5) you have not adopted your stepdaughter, you are advised as follows.
As a Township Supervisor, you are a public official subject to the provisions of the
et seq. Subject
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 Township Supervisor in matters that
would financially impact you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated. Your stepdaughter is not a
efined in the Ethics Act and the
Regulations of the State Ethics Commission.
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 with regard to voting on legal issues or other matter(s)
that would involve your stepdaughter.
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 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