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HomeMy WebLinkAbout00-522 KulpLinus E. Fenicle, Esq. Reager, Adler & Cognetti, PC 2331 Market Street Camp Hill, PA 17011-4642 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL February 17, 2000 00 -522 Re: Conflict; Public Official /Employee; Supervisor; Second Class; Township; Roadmaster; Seconding; Vote; Appointing Self; Compensation. Dear Mr. Fenicle: This responds to your letter of January 13, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics .Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a second class township supervisor on a three member board as to seconding a motion to appoint himself to the compensated position of township roadmaster. Facts: As Solicitor for Jackson Township, Dauphin County, you request an advisory on behalf of Ira Kulp (Kulp) and the Jackson Township Board of Supervisors (Board). Jackson Township (Township) is a Second Class Township with a three member Board. Pursuant to the Second Class Township Code, the Board has the authority to appoint a Board member as Township Roadmaster. The position of Roadmaster is a paid position. At the Board's reorganization meeting, one Board member made a motion to appoint Kulp as Roadmaster. No one seconded the motion. After reviewing the Ethics Act, you state that it does not specifically address the issue of a public official seconding a motion for his appointment to the compensated position of Roadmaster. You ask whether Kulp would have a conflict of interest under the Ethics Act in seconding the motion since he would have a pecuniary benefit if he were appointed to that position. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.na.us • e -mail: ethicsOstate.oa.us Fenicle, 00 -522 February 17, 2000 Page 2 disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(1O), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Jackson Township, Kulp is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. 65 Pa.C.S. §1102. (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: Section 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. 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 solicitor 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: Section 1103. Restricted activities. Fenicle, 00 -522 February 17, 2000 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, JVllakar, 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 holdingsuch 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 question of whether Kulp would be permitted to second a motion for his nomination shall now be addressed. The Commission, in Garner, Opinion 93 -004, considered the issue of whether, under Section 3(j) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Fenicle 00 -522 February 17, 2000 Page 4 Citing Juliante, Order No. 809, the Commission first noted that seconding a motion is a use of authority of office. Hence, an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members (sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section • 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards involving either of the above situations. Applying Garner to the instant matter, under Section 1103(j) of the Ethics Act, Kulp would be permitted to second the motion for his nomination only in a situation where, on a three member board, 1) the two remaining Supervisors would have opposing views; or 2) one of the other two Supervisors would be absent from the meeting. Allowing Kulp to second the motion in either of the above scenarios would put the matter in a posture for a vote. If the vote of the remaining two Supervisors would result in a deadlock, Kulp would then be permitted to vote to break the tie provided that the disclosure requirements of Section 1 103(j) would be satisfied. 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. This advisory is limited to the specific question posed. ConCIuSiOR: As a Supervisor for Jackson Township, Kulp is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 at seg. Section 1103(j) of the Ethics Act would allow Kulp to second a motion for his nomination to the compensated position of Roadmaster where the two remaining Supervisors would have opposing views or where one of the other two Supervisors would be absent. Allowing Kulp to second the motion in either of the above scenarios would put the matter in a posture for a vote. If the vote of the remaining two Supervisors would result in a deadlock, Kulp would then be permitted to vote to break the tie, provided that the disclosure requirements of Section 1103(j) would be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act and has been limited only to the question posed. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Fenicle 00 -522 February 17, 2000 Page 5 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 §13.2(h 1. 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. Vincent J. Dopko Chief Counsel