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HomeMy WebLinkAbout01-002 ShimekOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Donald M. McCurdy DATE DECIDED: 5/15/01 DATE MAILED: 5/30/01 John J. Shimek, III, Esquire Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc. 222 West Grandview Boulevard Erie, PA 16506 -4508 01 -002 Re: Conflict, Public Official /Employee, Township, Council- Manager Plan, Council Members, Salary Increase as Reimbursement for Restitution Imposed Upon Township Manager by State Ethics Commission, Anthony, Order 1179, Motion, Second, Vote. Dear Mr. Shimek: This Opinion is issued in response to your advisory request dated March 15, 2001. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon township council members with regard to providing additional pay to the township manager as reimbursement for obligations incurred in a case before this Commission involving his admitted violations of the Ethics Act. II. FACTUAL BASIS FOR DETERMINATION: As Solicitor for Washington Township, you request an advisory opinion from this Commission on behalf of the following members of the Washington Township Council: David Patterson, Louella M. (Bunny) Bucho, David Munzert, and Vere Woods (collectively referred to herein as the "Council Members "). Recently, the Washington Township Manager, David L. Anthony (Anthony), entered into a Consent Agreement with the Investigative Division of the State Ethics Commission. Per the Consent Agreement, Anthony admitted to certain violations of the Shimek, 01 -002 May 30, 2001 Page 2 Ethics Act. Anthony agreed to make payment to the Commonwealth of Pennsylvania in the amount of $4,000. The Consent Agreement was accepted by this Commission in Anthony, Order 1179. The question which you pose is whether the Council Members on whose behalf you have inquired would violate the Ethics Act if they would offer, second and /or vote in favor of a motion to grant Anthony additional "pay" from Township funds, above his current salary, to "compensate" him for the expenses (including attorney fees) which he has incurred in his defense before this Commission and /or for the aforesaid $4,000 payment. You ask whether the analysis would vary if the increase in Anthony's "pay" would be based upon the attorney fees, the $4,000 payment, or both. You emphasize that any motion and vote by the Council Members would not be an action to require the Township to pay the Commonwealth, the State Ethics Commission, or Anthony's attorney directly. Instead, the additional amounts paid to Anthony would be in the form of salary, and would be subject to the same deductions and withholdings as his regular pay. Finally, you state that none of the Council Members has any familial or business relationship with Anthony, other than as a Council Member who has voted, and in the future may vote, to retain Anthony in his position and to set his salary. By letter dated April 24, 2001, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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, this 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 members of the Washington Township Council, David Patterson, Louella M. (Bunny) Bucho, David Munzert, and Vere Woods (the "Council Members ") are all public officials 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 Shimek, 01 -002 May 30, 2001 Page 3 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 pertaining to conflict of interest 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. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to the facts which you have submitted, we would initially note that as the body charged with administering and enforcing the Ethics Act, we are sometimes presented with inquiries such as yours which may involve potential violations of other laws but not the provisions of the Ethics Act. We are aware that in such instances, our determination may be mischaracterized as a general approval of what is proposed. So that there will be no misunderstanding, we wish to make it very clear that we are not providing a general approval of what you are proposing, but are simply compelled to find that it would not violate the Ethics Act itself. Indeed, we do not "approve" of what you are proposing. What you are proposing is the use of taxpayer funds to pay Anthony's expenses for violating the law. We find such a proposal unconscionable. Shimek, 01 -002 May 30, 2001 Page 4 Apparently without any regard for the public trust, the Council Members on whose behalf you have inquired plan to use public funds to pay Anthony's legal expenses and the penalty imposed upon him for his admitted violations of the Ethics Act. Moreover, the Council Members propose to tender such payments in the form of additional salary, perhaps to avoid unfavorable legal consequences that could result from a direct payment of Anthony's obligations. See, e.q., Roofner's Appeal, 81 Pa. Super. 482 (1923) (Counsel fees and other expenses incurred by public officials in defending criminal charges, or charges of official misconduct, are incurred for a private purpose and cannot, in the absence of statutory provision therefor be paid from public funds...." 81 Pa. Super. at 484-485); see also, R.H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996). The Members plan to tender the payments as salary despite the cost to the taxpayers of paying not only for Anthony's actual obligations incurred as the result of his violations of the Ethics Act, but also the deductions and withholdings from his so- called "pay." It is clear to us that the Council Members place Anthony's interests above those of the public they are sworn to serve. It is nevertheless our duty to answer your question based upon Section 1103(a) of the Ethics Act. In order for a violation of Section 1103(a) of the Ethics Act to occur, all of the essential statutory elements must exist. If any element is missing under the submitted facts, this Commission is compelled to find that a conflict of interest would not exist under the Ethics Act. There is no basis in the current Ethics Act for finding an appearance of impropriety or a conflict based upon anything but the statutory elements. You have factually represented that none of the Council Members has any familial or business relationship with Anthony. The obvious implication is that one of the essential elements of a violation of Section 1103(a) would be lacking, specifically, the element of a private pecuniary benefit to any of the Council Members, their immediate family members, or businesses with which they or their immediate family members are associated. This matter is distinguishable from cases where a public official has acted to obtain legal representation or related reimbursements for himself at taxpayer expense. Under the facts which you have submitted, the public employee who would be benefited would not be taking any action. The element of use of authority of office may only be established if the public official /public employee takes action (see, McGuire and Marchitello v. State Ethics Commission, 657 A.2d 1346 (PaCmwIth. 1995)). Furthermore, those who would be taking action, that is, the Council Members, would not be financially benefited. Through a straightforward application of Section 1103(a) of the Ethics Act and the above statutory definition of "conflict" or "conflict of interest' to the facts which you have submitted, we are therefore compelled to conclude that none of the Council Members on whose behalf you have inquired would violate Section 1103(a) of the Ethics Act by offering, seconding and /or voting in favor of a motion to grant Township Manager Anthony so- called additional "pay" as reimbursement for obligations incurred in the case before this Commission relative to Anthony's admitted violations of the Ethics Act. This Opinion is conditioned upon the assumption that the proposed action would not result in a private pecuniary benefit to any such Council Member, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Our response to your inquiry would not vary if the increase in Anthony's "pay" would be based upon his attorney fees, $4,000 payment to the Commonwealth, or both. Although Section 1103(a) of the Ethics Act would not prohibit the proposed conduct, it is recommended that the Council Members obtain legal advice as to the applicability of other laws. Consideration should be given as to whether the Council Members would be subject to a surcharge, such as is provided in the Second Class Shimek, 01 -002 May 30, 2001 Page 5 Township Code. See, 53 P.S. §§ 65907 and 65908. If the Council Members go forward with their plan, there may be some remedy available to the electors and taxpayers. This Opinion is based upon the facts which have been submitted and is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there have been no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act. Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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. IV. CONCLUSION: Township council members are public officials subject to the provisions of the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. 1101 et seq. Through a straightforward application of Section 1103(a) of the Ethics A ct and the statutory definition of "conflict" or 'conflict of interest" at Section 1102 of the Ethics Act, a township council member would not violate Section 1103(a) of the Ethics Act by offering, seconding and /or voting in favor of a motion to grant the township manager additional "pay" as reimbursement for obligations incurred in a case before this Commission relative to admitted violations of the Ethics Act. This Opinion is conditioned upon the assumption that such action would not result in a private pecuniary benefit to the council member, a member of his immediate family, or a business with which he or a member of his immediate family is associated. It is recommended that legal advice be obtained as to the applicability of other laws to the proposed conduct. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair