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HomeMy WebLinkAbout20-547 HasslerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 A AM1,11160 IN UNIN I I Q L, U [a] 4 us] a December 9, 2020 To the Requester: Dale M. Hassler Dear Dale N. Hassler: FACSIME: 717-787-0806 WEBSITE: wwwethics-pa.g9v This responds to your letter dated October 16, 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 P-a-T-S. § 1101 et sgg., would 'impose prohibitions or restrictions upon an individual serving as a member and chairman of a township board of supervisors with regard to participating in discussions or votes of the township board oTsupervisors on budget allocations, a tax to generate revenue to pay for fire services, or other matters pertaining to a volunteer fire company, where the individual is: (1) a member and the fire chief of the volunteer fire company; and (2) an appointed fire marshal. Facts: You request an advisory from the Commission based upon submitted facts, M—ematerial portion of which may be fairly summarized as follows. In November 2019, you were reelected as a Supervisor for Allen Township ETownship"). You are currently serving as Chairman of the Township Board Of pervisors. You are an active member of Allen Township Fire Company No. I the "Fire Company"), which is a volunteer fire company. The Fire Company is governed by a five - Member Board of Trustees, five officers, and three firefighting officials. You have served as the Fire Company Fire Chief since 2015. It is noted that the submitted facts are unclear as to whether the position of Fire Chief is an officer of the Fire Company. You also hold the position of Fire Marshal, having been appointed to that position by the Pennsylvania State Police. You do not receive any compensation or reimbursement for personal expenses from the Fire Company in relation to the performance of your duties with the Fire Company. Hassler, 20-547 eU ceem er 9, 2020 Page 2 The Township allocates a certain sum in its budget to be set aside to reimburse the Fire Company for operational and capital expenses. The Township Board of Supervisors might levy a tax (a "Fire Services Tax") to generate revenue that would be dedicated to paying expenses associated with the Fire Company. Based upon the above submitted facts, the following questions are posed by your advisory request: (1) Whether the Ethics Act would prohibit you from participating in discussions or votes of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters pertaining to the Fire Company, and (2) Whether the answer to the above question would be different if you would cease serving as the Fire Chief of the Fire Company and would serve solely as a member and firefighter of the Fire Company (while continuing to serve as Fire Marshal). It is administratively noted that you previously obtained an Advice of Counsel, Hassler, Advice 14-566, issued December 19, 2014, under similar facts. 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 Member and Chairman of the Township Board of Supervisors, 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 Hassler, 20-547 eU cember 9, 2020 Page 3 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), 0). 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. "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. 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 11030) of the Ethics Act would be applicable Additionally, Hassler, 20-547 e�cember 9, 2020 Page 4 the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In ap I ing the above provisions of the Ethics Act to the instant matter, you are advised as follows. With respect to the Fire Company, the threshold issue is whether the Fire Company would be considered a part of the Township or a private entity separate from the Township. For purposes of the Ethics Act, depending upon the circumstances in a given case, a fire company/department may be considered to be part of a governmental bodylpolitical subdivision or a private entity. Among the most significant factors in determining the status of a fire company/department is the degree to which the fire company/department is funded and controlled by the governmental body/political subdivision, or alternatively raises its own funds and governs itself. In the instant matter, the submitted facts are insufficient to enable a conclusive determination as to whether the Fire Company would be considered a private entity and would not be considered a part of the Township. Therefore, you are generally advised as follows. If the Fire Company would be considered a private entity and would not be considered a part of the Township, the Fire Company would be a "business" as that term is defined by the Ethics Act, and if the position of Fire Chief would be designated as an officer of the Fire Company, the Fire Company would be a business with which you are associated. Accordingly, under such circumstances, you generally would have a conflict of interest under Section 11 03(a) of the Ethics Act with regard to participating in discussion( s} or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. Based upon the submitted facts, even if the Fire Company would be a business with which you are associated in your capacity as the Fire Chief, if you would cease serving as the Fire Chief and would serve solely as a member and firefighter of the Fire Company (while continuing to serve as Fire Marshal), the Fire Company would no longer be considered a business with which you are associated. See, Hassler, Advice 14-566. Under such circumstances, unless there would be a—Gasis­-ora 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 participating in discussion(s) or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. If the Fire Company would not be considered a private entity and would be considered a part of the Township, absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with whi( 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 participating in discussion(s) or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. 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 Hassler, 20-547 ember 9, 2020 Page 5 of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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 o her 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) in November 2019, you were reelected as a Supervisor for Allen Township ("Township"); (2) you are currently serving as Chairman of the Township Board of Supervisors; (3) you are an active member of Allen Township Fire Company. No. 1 (the "Fire Company'), which is a volunteer fire company; (4) the Fire Company is governed by a five -Member Board of Trustees, five officers, and three firefighting officials; (5) you have served as the Fire Company Fire Chief since 2015; (6) you also hold the position of Fire Marshal, having been appointed to that position by the Pennsylvania State Police; (7) you do not receive any compensation or reimbursement for personal expenses from the Fire Company in relation to the performance of your duties with the Fire Company, (8} the Township allocates a certain sum in its budget to be set aside to reimburse the Fire Company for operational and capital expenses; and (9) the Township Board of Supervisors might levy a tax (a "Fire Services Tax") to generate revenue that would be dedicated to paying expenses associated with the Fire Company, you are advised as follows. As a Member and Chairman of the Township Board of Supervisors, 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 se . The submitted facts are unclear as to whether the position of Fire Chief is an officer of the Fire Company. The submitted facts also are insufficient to enable a conclusive determination as to whether the Fire Company would be considered a private entity and would not be considered a part of the Township. Therefore, you are generally advised as follows. If the Fire Company would be considered a private entity and would not be considered a part of the Township, the Fire Company would be a "business" as that term is defined by the Ethics Act, and if the position of Fire Chief would be designated as an officer of the Fire Company, the Fire Company would be a business with which you are associated. Accordingly, under such circumstances, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s) or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. • Based upon the submitted facts, even if the Fire Company would be a business with which you are associated in your capacity as the Fire Chief, if you would cease serving as the Fire Chief and would serve solely as a member and firefighter of the Fire Company (while continuing to serve as Fire Marshal), the Fire Company would no longer be considered a business with which you are associated. Under such circumstances, unless there would be a 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 familyis associated, you would not have a conflict of interest under Section 1103(a) oftheEthics Act with regard to participating in discussion(s) or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. • If the Fire Company would not be considered a private entity and would be considered a park of the Township, absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a Hassler, 20-547 eC3 cember 9, 2020 Page 6 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 participating in discussion(s) or vote(s) of the Township Board of Supervisors on budget allocations, a Fire Services Tax, or other matters that would financially impact the Fire Company. In each instance of a conflict of interest, you would be required to abstain from partici ation, which would include voting unless one of the statutory exceptions of Section 11030 of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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 actuallX received at the Commission within thirt (30 days of the date o thisAdvice pursuant to 51f Pa. Code § 1'3.2h). 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, 564,- /;� ��/- Robin M. Hittie Chief Counsel