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HomeMy WebLinkAbout02-507 CraleyTheresa A. Craley 430 Dartha Drive Dallastown, PA 17313 -9630 Dear Ms. Craley: ADVICE OF COUNSEL January 18, 2002 02 -507 Re: Conflict; Public Official/Employee; Commissioner; York Township; Immediate Family Member; Spouse; Vacancy on Zoning Hearing Board; Vote; De Minimis Exclusion. This responds to your letter of December 19, 2001, 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 commissioner as to voting to fill a vacancy on the township zoning hearing board when her spouse is one of three candidates for this position. Facts: You are a commissioner —elect in York Township, a first —class township in York ounty. You will be sworn in for a four —year term at the reorganization meeting on January 7, 2002. At the reorganization meeting, the Board of Commissioners will also be voting to fill a vacancy on the Zoning Hearing Board. Zoning Hearing Board members receive $40.00 for attending each meeting. Your spouse is one of three candidates being considered to fill the vacancy. You ask whether the Ethics Act would require you to abstain from voting to fill the vacancy or whether the de minimis exclusion would apply, thereby permitting you to participate in the matter. 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 Craley, 02 -507 January 18, 2002 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Commissioner for York Township, 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: § 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. 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 Craley, 02 -507 January 18, 2002 Page 3 (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. 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 your husband is in one of the familial relationships delineated above, he is a member of your immediate family. With regard to the question you have posed, you are advised as follows. You would not have a conflict as to voting for a candidate other than your spouse based upon the factual assumption that such candidate would not be a member of your immediate family or someone with whom you would have a business relationship. Thus, where your official action would be against the interests of your spouse such that your spouse would suffer a financial detriment, and there would be no other basis for a prohibited private pecuniary benefit, the requisite element of a private pecuniary benefit would be lacking and there would be no conflict under Section 1103(a). See, Chestnutt /Gleason, Advice 96 -588; Borgo, Order 957; Eisaman, Order 958; and Zentner, Order 963. Craley, 02 -507 January 18, 2002 Page 4 However, you would have a conflict as to voting for your spouse to fill the compensated position of Zoning Hearing Board Member as such action would result in a financial gain to an immediate family member. Further, be aware that a conflict would exist even as to action to eliminate competitor(s), where such action would assure or increase the possibility of your spouse being appointed to that position. See, Pepper, Opinion 87 -008. In that zoning hearing board members are paid $40.00 for attending each meeting, the de minimis exclusion is inapplicable. In each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The abstention requirement would not be limited to voting, but would extend to any use of authority of office. The use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. See, Juliante, Order 809. 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 a Commissioner for York Township, 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. You would not have a conflict as to voting for a candidate other than your spouse based upon the factual assumption that such candidate would not be a member of your immediate family or someone with whom you would have a business relationship. However, you would have a conflict as to voting for your spouse to fill the compensated position of Zoning Hearing Board Member as such action would result in a financial gain to an immediate family member. A conflict would exist even as to action to eliminate competitor(s), where such action would assure or increase the possibility of your spouse being appointed to that position. In that zoning hearing board members are paid $40.00 for attending each meeting, the de minimis exclusion is inapplicable. In each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The abstention requirement would not be limited to voting, but would extend to any use of authority of office. 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 Craley, 02 -507 January 18, 2002 Page 5 Advice pursuant to 51 Pa. Code, § 13.2(h). 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