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HomeMy WebLinkAbout00-627 OBrienDiane N. O'Brien Chair, Board of Supervisors Kidder Township P.O. Box 576 Lake Harmony, PA 18624 ADVICE OF COUNSEL November 20, 2000 00 -627 Re: Conflict; Public Official /Employee; Chair; Township Board of Supervisors; Receipt of Compensation as Administrative Consultant; Private Pecuniary Benefit; Interview; Township Manager Position. Dear Ms. O'Brien: This responds to your letters of October 17, 2000 and October 19, 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 the chair of a township board of supervisors with regard to: 1) receiving reimbursement /compensation for work performed for the township in the capacity of an administrative consultant; or 2) interviewing for the position of township manager. Facts: As Chair of the Kidder Township Board of Supervisors ( "Board "), you seek an advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. Kidder Township ( "Township ") dismissed its Township Manager effective September 22, 2000. The position is currently vacant. Since September 22, 2000, you have been performing services for the Township in the capacity of an "Administrative Consultant,' while the Board has conducted a search for a new Township Manager. Two weeks ago, the Board voted to request that the Township Board of Auditors fix a rate of reimbursement at an hourly rate to compensate you for your work as Administrative Consultant. You state that you did not participate in the Board's discussion, and you recused yourself from the vote. You further state that you have not accepted any compensation for the hours that you have worked as Administrative Consultant because you want an opinion as to the propriety of accepting such compensation. O'Brien, 00 -627 November 20, 2000 Page 2 Additionally, you have submitted an application for the position of Township Manager. You state that you have not reviewed any incoming resumes for that position. You further state that you have notified the Board that you will not be participating (as a Board Member) in the interview process and that you do not want to be advised as to the identity of the other applicants. Based upon the above facts, you pose the following questions: 1. Whether you may accept compensation /reimbursement from the Township for your work as Administrative Consultant while the Board searches for a new Township Manager; 2. Whether you have behaved improperly by submitting an application for the position of Township Manager under these circumstances; and 3. Whether you may interview for the position of Township Manager while holding your position on the Board. It is administratively noted that the Board is a 5- Member Board. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Chair of the Kidder Township Board of Supervisors, you are a public official as that term is defined in the Ethics Act, and hence you are 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 which pertain to Section 1103(a) are defined in the Ethics Act as follows: Section 1102. Definitions O'Brien, 00 -627 November 20, 2000 Page 3 65 Pa.C.S. §1103(f). "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(f) of the Ethics Act provides as follows: §1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. The term "contract" is defined in the Ethics Act as follows: "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a O'Brien, 00 -627 November 20, 2000 Page 4 political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. §1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 1103(j) of the Ethics Act provides as follows: 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 O'Brien, 00 -627 November 20, 2000 Page 5 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, first with regard to your proposed acceptance of compensation for work performed as an Administrative Consultant, and then as to your question of whether you may interview for the position of Township Manager. 1. Proposed acceptance of compensation for work performed as an "Administrative Consultant." The threshold question in determining whether you may accept compensation for your current work as an "Administrative Consultant" is whether you are de facto performing the duties of a Township Manager and merely using a different label, as your letter implies that you are doing. A. If performing the duties of a Township Manager: If, as an "Administrative Consultant," you are in fact performing the duties of a Township Manager, then pursuant to Section 1103(a) of the Ethics Act, you may not accept compensation for your work as an "Administrative Consultant." In applying the Ethics Act, the State Ethics Commission does not elevate form over substance; thus, the label you are using is not dispositive. If you are de facto performing the duties of a Township Manager, then substantively, you are simultaneously holding the positions of Township Supervisor and Township Manager, which positions have been declared by the General Assembly to be incompatible. See, 53 P.S. §66301(c). A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. Since the Second Class Township Code clearly forbids simultaneous service as a Township Supervisor and Township Manager, any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the positions of Township Supervisor and de facto Township Manager would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received. B. If not performing the duties of a Township Manager: On the other hand, if as an Administrative Consultant, you are not performing the duties of a Township Manager, then you are advised as follows. O'Brien, 00 -627 November 20, 2000 Page 6 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. Since you are already holding the position of "Administrative Consultant," any related actions which you may have taken as a public official in obtaining that work would obviously constitute past conduct, the propriety or impropriety of which could not be determined in this Advice. However, since you have not accepted compensation for this work pending an advisory as to the propriety of your conduct, there is still future conduct which may be addressed. You are advised that to the extent you have used the authority of office or confidential information received by being in your public position to obtain the work as Administrative Consultant, your acceptance of compensation for such work would complete the elements for a conflict of interest in contravention of Section 1103(a) of the Ethics Act. Examples of such "uses of authority of office" could include: participating as to setting the necessary qualifications of the Administrative Consultant; advocating the selection of yourself or the rejection of competitors; and participating in the vote /authorization to select yourself for the work. On the other hand, if you have not used the authority of office or confidential information received by being in your public position relative to working for the Township as an Administrative Consultant, Section 1103(a) of the Ethics Act would not preclude your acceptance of compensation for the latter. To the extent the requirements of Section 1103(f) would be applicable, the requirements of that Section would have to have been satisfied in order for you to accept compensation as an Administrative Consultant for the Township. Similarly, there is a provision in the Second Class Township Code, 53 P.S. � 68102(i), which may have some relevance to your situation. Since the State Ethics Commission does not have jurisdiction to interpret the Second Class Township Code, it is recommended that you obtain legal advice in that regard. 2. Questions pertaining to the position of Township Manager. Turning to your questions involving the position of Township Manager, you first ask whether you have behaved improperly by submitting an application for the position of Township Manager under the facts which you have submitted. That particular question pertains exclusively to past conduct and may not be addressed in this Advice. Your final question is whether you may interview for the position of Township Manager while holding your position on the Board. You are advised as follows. Section 1103(a) of the Ethics Act would not expressly prohibit a Township Supervisor from interviewing for the position of Township Manager. However, as in the analysis immediately above, if you have used or would use the authority of your office or confidential information received by being in your public position to obtain the work as Township Manager, your acceptance of compensation for such work would complete the elements for a conflict of interest in contravention of Section 1103(a) of the Ethics Act. Examples of such "uses of authority of office" could include: uses of authority of office such as those listed in the analysis above to get the work of Administrative Consultant, thereby gaining an advantage over competitors for the position O'Brien, 00 -627 November 20, 2000 Page 7 of Township Manager; participating as to setting the necessary qualifications of the Township Manager; advocating the selection of yourself or the rejection of competitors; and participating in the vote /authorization to select yourself for the position of Township Manager. On the other hand, if you have not used and would not use the authority of your office or confidential information received by being in your public position to obtain the work as Township Manager, Section 1103(a) of the Ethics Act would not preclude your acceptance of that position. Of course, in that event, you would have to resign from your position as a Township Supervisor due to the aforesaid statutory incompatibility of the two positions. 53 P.S. §66301. To the extent the requirements of Section 1103(f) would be applicable, the requirements of that Section would have to be satisfied in order for you to accept the position of Township Manager. Again, it is recommended that you obtain legal advice regarding the provision of the Second Class Township Code at 53 P.S. §68102(i), which may have some relevance to this aspect of your inquiry. 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. Conclusion: As a Member and the Chair of the Kidder Township Board of Supervisors ( "Board "), 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 seq. To the extent you have inquired as to conduct which has already occurred, such past conduct is not addressed in the context of this Advice. To the extent you have inquired as to future conduct, your inquiry is addressed. 1. Proposed acceptance of compensation for work performed as an "Administrative Consultant." A. If performing the duties of a Township Manager: If, as an "Administrative Consultant," you are in fact performing the duties of a Township Manager, then pursuant to Section 1103(a) of the Ethics Act, you may not accept compensation for your work as an "Administrative Consultant." Substantively, you would be simultaneously holding the positions of Township Supervisor and Township Manager, which positions have been declared by the General Assembly to be incompatible. See, 53 P.S. §66301(c). Simultaneous service in the positions of Township Supervisor and de facto Township Manager would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received. B. If not performing the duties of a Township Manager: If as an Administrative Consultant, you are not performing the duties of a Township Manager, then you are advised as follows. To the extent you have used the authority of office or confidential information received by being in your public position to obtain the work as Administrative Consultant, your acceptance of compensation for such work would complete the elements for a conflict of interest in contravention of Section 1103(a) of the Ethics Act. Examples of such "uses of authority of office" could include: participating as to setting the necessary qualifications of the Administrative Consultant; advocating the selection of yourself or the rejection of competitors; and participating in the vote /authorization to select yourself for the work. O'Brien, 00 -627 November 20, 2000 Page 8 If you have not used the authority of office or confidential information received by being in your public position relative to working for the Township as an Administrative Consultant, Section 1103(a) of the Ethics Act would not preclude your acceptance of compensation for the latter. To the extent the requirements of Section 1103(f) would be applicable, the requirements of that Section would have to have been satisfied in order for you to accept compensation as an Administrative Consultant for the Township. 2. Questions pertaining to the position of Township Manager. The question of whether you have behaved improperly by submitting an application for the position of Township Manager under the facts which you have submitted pertains exclusively to past conduct and is not addressed in this Advice. Section 1103(a) of the Ethics Act would not expressly prohibit a Township Supervisor from interviewing for the position of Township Manager. If you have used or would use the authority of your office or confidential information received by being in your public position to obtain the work as Township Manager, your acceptance of compensation for such work would complete the elements for a conflict of interest in contravention of Section 1103(a) of the Ethics Act. Examples of such "uses of authority of office" could include: uses of authority of office to get the work of Administrative Consultant, thereby gaining an advantage over competitors for the position of Township Manager; participating as to setting the necessary qualifications of the Township Manager; advocating the selection of yourself or the rejection of competitors; and participating in the vote /authorization to select yourself for the position of Township Manager. If you have not used and would not use the authority of your office or confidential information received by being in your public position to obtain the work as Township Manager, Section 1103(a) of the Ethics Act would not preclude your acceptance of that position. In that event, you would have to resign from your position as a Township Supervisor due to the aforesaid statutory incompatibility of the two positions. 53 P.S. §66301. To the extent the requirements of Section 1103(f) would be applicable, the requirements of that Section would have to be satisfied in order for you to accept the position of Township Manager. 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. O'Brien, 00 -627 November 20, 2000 Page 9 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