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Home My WebLink About00-618 DillonFrancis X. Dillon, Esquire Begley, Carlin & Mandio 680 Middletown Boulevard P.O. Box 308 Langhorne, PA 19047 -0308 Dear Mr. Dillon: ADVICE OF COUNSEL October 18, 2000 00 -618 Re: Conflict; Public Official /Employee; Township Supervisor; Personal Injury; Lawsuit; Joined Defendant; Vote. This responds to your letter of September 14, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to voting on issues relating to a corporation that operates a country club on behalf of the township, or the country club itself, when the supervisor has instituted a lawsuit and an individual who is a principal of the said corporation has been joined as an additional defendant. Facts: As Solicitor for Middletown Township ( "Township "), you seek an advisory from the State Ethics Commission on behalf of Township Supervisor Mel D. Kardos ( "Kardos "). You state that Kardos was injured on a piece of equipment while exercising at Newtown Athletic and Aquatic Club ("NAAC"). Kardos has instituted a lawsuit against Streamline Gym and Fitness Equipment, Inc. Streamline ") and Thor Exercise Tools, Inc. Streamline has joined Samuel J. Worthington ( "Worthington "), t/a NAAC, as an additional defendant to the lawsuit. You have submitted a copy of Streamline's Praecipe to Issue Writ and the Writ joining Worthington t/a NAAC, which documents are incorporated herein by reference. You state that Worthington is a principal in Mitchland, Inc., which operates Middletown Country Club on behalf of the Township. You ask whether Kardos may vote on issues relating to the Middletown Country Club and Mitchland, Inc., given the fact that Worthington has been joined as an additional defendant to Kardos' aforesaid lawsuit. Dillon, 00 -618 October 18, 2000 Page 2 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 requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. As a Supervisor for Middletown Township, Mel D. Kardos ( "Kardos ") is a public official as that term is defined in the Ethics Act, and hence Kardos is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 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. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: Dillon, 00 -618 October 18, 2000 Page 3 Section 1103. Restricted activities (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(j). In each instance of a conflict, Section 1103(j) requires the public official /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 or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. The above provisions of the Ethics Act shall now be applied to your inquiry. Subject to certain exceptions delineated in the definition of "conflict" or "conflict of interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a public official /public employee to use 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 fully and to fully satisfy the disclosure requirements of Section 1103(j) set forth above. Turning to the question of whether Kardos may vote on issues relating to the Middletown Country Club and Mitchland, Inc. in light of the fact that Worthington, who is a principal in Mitchland, Inc., has been joined as an additional defendant in Kardos' litigation, you are advised as follows. Conditioned upon the assumptions that there would be no improper understandings contrary to Section 1103(b) or Section 1103(c) of the Ethics Act and that Dillon, 00 -618 October 18, 2000 Page 4 the issues before the Township involving the Country Club and Mitchland, Inc. would not affect Kardos' litigation in such a way as to result in a financial benefit to Kardos, Kardos would not have a conflict and could participate and vote on such issues. 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: As a Supervisor for Middletown Township, Mel D. Kardos ("Kardos ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Under the submitted facts that: (1) Kardos has instituted a lawsuit; (2) Samuel J. Worthington ( "Worthington ") is a principal of Mitchland, Inc., a corporation that operates the Middletown Country Club on behalf of the Township; and (3) Worthington has been joined as an additional defendant to Kardos' lawsuit, conditioned upon the assumptions that there would be no improper understandings contrary to Section 1103(b) or Section 1103(c) of the Ethics Act and that the issues before the Township involving the Country Club and Mitchland, Inc. would not affect Kardos' litigation in such a way as to result in a financial benefit to Kardos, Kardos would not have a conflict under the Ethics Act and could participate and vote on such issues. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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 §13.20. 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, Vincent J. Dopko Chief Counsel