HomeMy WebLinkAbout01-503 ShowalterTamara E. Showalter, Esquire
Herr & Low, P.C.
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608 -1533
ADVICE OF COUNSEL
January 8, 2001
01 -503
Re: Conflict; Public Official /Employee; Township; Supervisor; Resident of Retirement
Community; Life Care Contract with Retirement Facility; Participating in Board
Action Regarding Retirement Facility.
Dear Ms. Showalter:
This responds to your letter of December 5, 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 as to participating in board action regarding a retirement community, where
the supervisor and his wife pay a monthly fee pursuant to a life care contract to reside in
that retirement community.
Facts: You represent Karl H. Ottolini ( "Ottolini "), who was elected to the West
Lampeter Township Board of Supervisors in September 2000 to fill the unexpired term of
a former supervisor.
Ottolini and his wife are residents of a retirement community known as Willow
Valley Lakes Manor — Gables in West Lampeter Township ( "Willow Valley "). Ottolini and
his wife pay $2,776.00 per month pursuant to life care contracts they have with Willow
Valley. You state that neither Ottolini nor his wife own real estate at Willow Valley.
Before Ottolini became Township Supervisor, he and his wife appeared on a
brochure advertising Willow Valley, for which neither received remuneration. Ottolini and
his wife also received three or four free dinners from Willow Valley valued at
approximately $10.00 per person when they took out prospective residents.
Recently, Willow Valley has sought to expand its facilities. The expansion project
will require the Board of Supervisors to vote on several matters concerning that project.
You state that Ottolini is concerned about a possible conflict of interest or the appearance
Showalter, 01 -503
January 8, 2001
Page 2
of a conflict of interest because of his and his wife's involvement with Willow Valley prior
to his election and because of their life care contracts with Willow Valley.
Given the above, you ask whether Ottolini would have a conflict of interest as to
voting in matters before the Township Board of Supervisors concerning Willow Valley.
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 West Lampeter Township, Karl Ottolini ( "Ottolini ") is a public
official as that term is defined in the Ethics Act, and hence, Ottolini is subject to the
provisions of that Act.
Section 1103(a) of the Ethics Act provides:
$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:
$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.
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
Showalter, 01 -503
January 8, 2001
Page 3
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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
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:
$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.
Showalter, 01 -503
January 8, 2001
Page 4
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.
In applying the above provisions of the Ethics Act to the instant matter, pursuant to
Section 1103(a) of the Ethics Act, 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 term "immediate family" is defined to include a parent, spouse, child, brother
or sister. Because Ottolini's wife is in one of the familial relationships delineated above,
she is a member Ottolini's immediate family. Pursuant to Section 1103(a) of the Ethics
Act, Ottolini would be prohibited from using the authority of his office as a Township
Supervisor or confidential information for the private pecuniary benefit of himself or his
wife. Furthermore, if a matter would come before the Board of Supervisors that would
result in a financial gain to Ottolini or his wife, Ottolini would be required to abstain and
observe the disclosure requirements of Section 1103(j) of the Ethics Act as set forth
above.
Having established the above principles, your specific inquiry shall now be
addressed.
With regard to whether Ottolini would have a conflict as to matters before the
Board involving Willow Valley's request to expand its facilities, you are advised as
follows. Although Ottolini and his wife have a relationship with Willow Valley due to their
life care contracts with that facility, based upon the submitted facts, neither Ottolini nor
his wife is a director, officer, owner, or employee of Willow Valley, or has a financial
interest in Willow Valley. Thus, although Willow Valley may gain financially if the Board
approves its expansion project, Willow Valley is not a business with which Ottolini or his
wife is associated. Therefore, Ottolini would not have a conflict as to participating in
matters before the Board regarding Willow Valley because there would be no element of
a financial gain to Ottolini, his wife, or a business with which Ottolini or his wife is
associated. This conclusion is conditioned upon the assumption that there would be no
improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics Act
as discussed above. Again, it is not suggested that Ottolini would engage in such
conduct and the above is provided in order to provide a complete response to your
request.
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 respective municipal code.
Conclusion: As Supervisor for West Lampeter Township, Karl H. Ottolini
("Ottolini ") 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. Ottolini's wife is a member of his
immediate family. Pursuant to Section 1103(a) of the Ethics Act, Ottolini would be
prohibited from using the authority of his office as a Township Supervisor or confidential
information for the private pecuniary benefit of himself or his wife. Furthermore, if a
matter would come before the Board of Supervisors that would result in a financial gain to
Ottolini or his wife, Ottolini would be required to abstain and observe the disclosure
requirements of Section 1103(j) of the Ethics Act as set forth above.
Showalter, 01 -503
January 8, 2001
Page 5
Willow Valley, a retirement facility to which Ottolini and his wife pay a monthly fee,
is not a business with which Ottolini and his wife are associated, since neither Ottolini nor
his wife is a director, officer, owner, or employee of Willow Valley, or has a financial
interest in Willow Valley. Therefore, Ottolini would not have a conflict as to participating
in matters before the Board regarding Willow Valley, provided that there would be no
improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics Act.
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