HomeMy WebLinkAbout00-539 RegolaSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBUR 783-1610 , A 17108-1470
17) 1- 800 -932 -09
ADVICE OF COUNSEL
March 13, 2000
Leslie J. Mlakar, Esquire
Loughran, Mlakar & Bilik
126 South Pennsylvania Avenue
00-539
Greensburg, PA 15601
Re: A Conflict; Public
Immediate Family Member; Father; Vote; Subdrvlon Business Which
Dear Mr. Mlakar:
This responds to your letter of February 7, 2000 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics
co ( "Eth ic s s Aown
Pa.C.S. §1101 a t seq., presents any prohibition
supervisor as to: (1) voting on a plan or subdivision submitted to the board of
supervisors by his father /employer; and (2) continuing his employment with his father
while he serves as township supervisor.
Facts: You are the attorney for Robert T. Regola ( "Regola "), a Supervisor in
Hempfield Township. The Hempfield Township Board of Supervisors ( "Board ") is a
five - member body. Regola was elected to the Board in the 1999 general election and
took office in January 2000. From a time prior to Regola's election up to the present,
he has been employed by his father.
The Township has enacted a Subdivision and Land Development Ordinance
which requires the submission of lot plans for Board approval. Regola prepared and
submitted lot plans and surveys to the Board for approval before he was elected.
Now that Regola has been elected to the Board, his father will submit the plans and
subdivisions to the Board, and Regola will continue to be employed by his father.
You have advised Regola that as a duly elected Township Supervisor, he is
subject to the Ethics Act. You have further advised Regola that, as a public official,
he would have a conflict in voting on a plan or subdivision submitted by his father to
the Board. In addition, you have informed Regola that whenever a plan of Tots or
subdivision would be prepared by his father and submitted to the Board for approval,
Regola Section 1103(j) of Act beleve if a would
five occur on the
- m 1103)
five - member Board, Regola would be permitted to vote to break the tie. You base your
conclusion upon Section 1 103(j) of the Ethics Act which refers to voting to break a
tie on a three - member board.
FAX: (717) 787 - 0806 • Web Site: www.et te-pa = es • e-mail: ethic @s__ fate -taus
Regola, 00 -539
March 13, 2000
Page .2
You seek an advisory as to the following questions.
1. May Regola vote to approve or disapprove a subdivision plan submitted
by his father?
2. If Regola abstains from voting on a plan or subdivision submitted by his
father, and the remaining Board members cast opposing votes resulting in a deadlock,
may Regola vote to break the tie if proper disclosures are made?
3. May Regola continue to be employed by his father and perform survey
and drafting tasks with respect to plans or subdivisions to be submitted to the Board
for approval?
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 Supervisor for Hempfield Township, Regola 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 1 103(a) of the Ethics Act provides:
Section 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:
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.
Regola, 00 -539
March 13, 2000
Page 3
"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 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.
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 has been Reference is made to these .
transgression thereof but
m
of the law not de imply
merely to provide a complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
Se tion 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 or ina c the
following procedure shall be employed. Any publ
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,
Regola, 00 -539
March 13, 2000
Page 4
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 Regola's father is in one of the familial relationships
delineated above, he is a member of Regola's immediate famiy. Further, the surveying
business which employs Regola is a business with which he and his father are
associated.
As for your first question, you are advised as follows. Pursuant to Section
1103(a) of the Ethics Act, Regola would be prohibited from using the authority of his
office or confidential information for the private pecuniary benefit of himself, his father
or the surveying business. Thus, Regola would not be permitted to vote on a plan or
subdivision submitted to the Board by his father. In such an instance of a conflict,
Regola would be required to abstain and to observe the disclosure requirements of
Section 1103(j) of the Ethics Act.
Turning to your second question as to whether Regola would be permitted to
cast the tie - breaking vote to break a 2 -2 deadlock on a five - member Board, Mlakar
supra, makes it clear that only when the governmental body is unable to take official
action because the majority or other legally required vote is unattainable due to the
number of members required to abstain, such abstaining members will be permitted
to vote if proper disclosures are made. Thus, in the case of a five- member
council /board, three public officials would have to have a conflict under the Ethics Act
in order to make - the majority or other legally required vote unattainable. The fact that
one or two members would have a conflict would be an insufficient basis under
uired
Section 1103(j) for these members to vote since a majority or other legally reg you
vote could still be attainable despite their abstention. Hence, in the hypothe
pose, 2 2 Rego la would n o
not b p heed five-member Section c 1103(j) t cast the tie - breaking
vote g
As for your third question, Section 1103(a) of the Ethics Act does not prohibit
public officials /public employees from having outside business activities or
employment; however, the public official /public employee may not use the authority
of his public position - or confidential information - for the advancement of his own
Regola, 00 -539
March 13, 2000
Page 5
private pecuniary benefit or that of a business with which he is associated. Pancoe,
Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a)
would include: (1) the pursuit of a private business opportunity in the course of public
action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as
governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity
as to matters involving the business with which the public official /public employee is
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041.
As stated above, if the private employer or a business with which the public
official /public employee is associated would have a matter pending before the
governmental body, the public official /public employee would have a conflict of
interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict
of interest, the public official /public employee would be required to abstain from
participation and to satisfy the disclosure requriements of Section 1103(j).
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.
COnc!uS1On.: As Supervisor for Hempfield Township, Regola is a public official
subject . the p10 1 e s seq. the Re ola'ss father and
a member
of lhi Act ("Ethics Act"), immediate famiy.
Further, h er, th e surveying et seq. g.
er, thurveying business which employs Regola is a business with which he and
his father are associated. Pursuant to Section 1103(a) of the Ethics Act, Regola would
be prohibited from using the authority of his office or confidential information for the
private pecuniary benefit of himself, his father, or the surveying business which
employs him. Thus, Regola would not be permitted to vote on a plan or subdivision
submitted to the Board by his father. In such an instance of a conflict, Regola would
be required to abstain and to observe the disclosure requirements of Section 1103(j)
of the Ethics Act. If a voting deadlock would occur on the five - member Board, three
public officials would have to have a conflict under the Ethics Act in order to make the
majority or other legally required vote unattainable. Hence, Regola would not be
permitted to cast the tie - breaking vote to break a 2 -2 deadlock on a five- member
board. Section 1103(a) of the Ethics Act would not prohibit Regola from continuing
his employment with his father in the surveying business; however, Regola would not
be permitted to use the authority of his public position — or confidential information —
for the business. Lastly, e the propriety of private
ofthe pro pecuniary benefit
onducthas t 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.
Regola, 00 -539
March 13, 2000
Page 6
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 ). 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.
rely,
Vincent J
Chief Counsel