HomeMy WebLinkAbout20-548 Housholder
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
December 9, 2020
To the Requester:
Matthew G. Housholder
20-548
Dear Matthew G. Housholder:
This responds to your letter dated October 21, 2020, by which you requested an
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving on a three-member township board of supervisors with regard to voting to break
as the township secretary.
Facts: You request an advisory from the Commission based upon the following
submitted facts.
Pennsylvania. The Township Board of Supervisors consists of three Members.
The individual serving as the Township Secretary will be retiring in the near future,
and your wife, Tammy L. Housholder, would like to apply for the position of Township
Secretary. You express your understanding that you would have a conflict of interest with
regard to voting to appoint your wife as the Township Secretary. You state that if your
wife would be chosen as a candidate for the position of Township Secretary, there could
be a tie vote of the other two Township Supervisors on the appointment of your wife to
such position.
The narrow question that is posed by your advisory request is whether you would
be permitted to vote to break a tie vote of the other two Township Supervisors on the
appointment of your wife as the Township Secretary.
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.
Housholder, 20-548
December 9, 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.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
Housholder, 20-548
December 9, 2020
Page 3
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.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest as a Township Supervisor with regard to voting on the appointment of your wife
to a compensated position as the Township Secretary. Subject to the voting conflict
exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from
participation in each instance of a conflict of interest.
The exception for breaking a tie vote despite a conflict of interest is available
exclusively to members of three-member governing bodies of political subdivisions who
first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act.
See, e.g., Pavlovic, Opinion 02-005. The Township Board of Supervisors is a three-
Member governing body of a political subdivision. Therefore, Section 1103(j) would
permit you to vote to break a tie if the other two Township Supervisors would cast
opposing votes on the appointment of your wife as the Township Secretary, provided that
you would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure
requirements of Section 1103(j). However, in voting to break a tie vote, you could not
otherwise use the authority of office, such as by advocating your view, in the matter.
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 for
Housholder, 20-548
December 9, 2020
Page 4
Township Board of Supervisors consists of three Members; and (3) the individual serving
as the Township Secretary will be retiring in the near future, and your wife, Tammy L.
Housholder, would like to apply for the position of Township Secretary, you are advised
as follows.
As a Township Supervisor, you are a public official subject to the provisions of the
et seq. Your
Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as a
Township Supervisor with regard to voting on the appointment of your wife to a
compensated position as the Township Secretary. Subject to the voting conflict
exceptions of Section 1103(j) of the Ethics Act, you would be required to abstain fully from
participation in each instance of a conflict of interest. The exception for breaking a tie
vote despite a conflict of interest is available exclusively to members of three-member
governing bodies of political subdivisions who first abstain and disclose their conflicts as
required by Section 1103(j) of the Ethics Act. Section 1103(j) would permit you to vote to
break a tie if the other two Township Supervisors would cast opposing votes on the
appointment of your wife as the Township Secretary, provided that you would initially: (1)
abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j).
However, in voting to break a tie vote, you could not otherwise use the authority of office,
such as by advocating your view, in the matter.
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