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HomeMy WebLinkAbout21-521 Jankovich PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 28, 2021 To the Requester: Ms. Dawn Jankovich 21-521 Dear Ms. Jankovich: This responds to your correspondence dated April 9, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission). Issue: Whether, pursuant to Section 1103(j) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(j), an individual (the Individual) serving on a three- Member Township Board of Supervisors would be permitted to take action to break a tie vote of the other two Township Supervisors regarding a pay increase for the Township Secretary/Treasurer, who is the I Brief Answer: YES. Section 1103(j) of the Ethics Act would permit the Individual to vote to break a tie if the other two Township Supervisors would cast opposing votes on a pay Township Secretary/Treasurer, provided that the Individual would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). Facts: You have been authorized to request an advisory from the Commission based upon the following submitted facts: You are the Secretary/Treasurer for Sandycreek Township (Township). The Township is governed by a three-Member Board of Supervisors. Jankovich, 21-521 April 28, 2021 Page 2 Your husband is a Township Supervisor. You state that when the Township Board of Supervisors review wages and grant pay increases, your husband abstains from voting on any pay increase for you, regarding your employment as the Township Secretary/Treasurer. The question that is presented by your advisory request is whether your husband would be permitted to take action to break a tie vote of the other two Township Supervisors concerning a pay increase for you as the Township Secretary/Treasurer. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all the material facts. 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 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 Jankovich, 21-521 April 28, 2021 Page 3 vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms related to Section 1103(a) 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. Political subdivision. Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. Subjec 65 Pa.C.S. § 1102, 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, Jankovich, 21-521 April 28, 2021 Page 4 conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act would require the public official/public 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, your husband is a public official subject to the provisions of the Ethics Act. You are a member of your in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, your husband generally would have a conflict of interest as a Township Supervisor with regard to voting on a pay increase for you as the Township Secretary/Treasurer. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, your husband would be required to abstain fully from participation in each instance of a conflict of interest. The exception for breaking a tie vote, despite a conflict of interest, is available exclusively to members of three-member governing bodies of political subdivisions who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Pavlovic, Opinion 02-005. The Township Board of Supervisors is a three-Member governing body of a political subdivision. Therefore, Section 1103(j) would permit your husband to vote to break a tie if the other two Township Supervisors would cast opposing votes on a pay increase for you as the Township Secretary/Treasurer, provided that your husband would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). However, in voting to break a tie vote, your husband could not otherwise use the authority of office, such as by advocating his view, in the matter. 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, this advisory does not address any applicability of the Second Class Township Code. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Jankovich, 21-521 April 28, 2021 Page 5 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 § 13.2(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, Brian D. Jacisin Chief Counsel