HomeMy WebLinkAbout01-556 KardosFrancis X. Dillon, Esquire
Begley, Carlin & Mandio
680 Middletown Boulevard
P.O. Box 308
Langhorne, PA 19047 -0308
Dear Mr. Dillon:
ADVICE OF COUNSEL
May 18, 2001
01 -556
Re: Conflict; Public Official /Employee; Township; Supervisor; Personal Injury; Lawsuit;
Country Club; Vote; Business; Law Partnership; Client.
This responds to your letter of April 18, 2001, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
PAS. §1101 et seq. presents any prohibition or restrictions upon a township
supervisor who is also an attorney as to voting on issues relating to a corporation that
operates a country club on behalf of the township, or the country club itself, where: 1) a
law partner of the supervisor represents an individual who has instituted a personal injury
lawsuit against an athletic club; and 2) certain principals of the athletic club are also
principals of the corporation that operates the country club.
Facts: As Solicitor for Middletown Township, you seek an advisory on behalf of
Middletown Township Supervisor Mel Kardos ( "Kardos "). Kardos is also an attorney in
Bucks County. A law partner of Kardos has been retained to represent an individual who
has instituted a personal injury lawsuit against the Newtown Athletic and Aquatic Club
( "NAAC "). You state that certain principals of NAAC are also principals in Mitchland, Inc.,
which operates Middletown Country Club on behalf of Middletown Township. You ask
whether Kardos may vote on issues relating to Middletown Country Club and Mitchland,
Inc.
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
Dillon /Kardos 01 -556
May 18, 2001
Page 2
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 Middletown Township, Mel Kardos ( "Kardos ") is a public official
as that term is defined in the Ethics Act, and hence Kardos is subject to the provisions of
that Act.
Section 1103(a) of the Ethics Act provides:
41103. 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.
"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 influenced thereby. Reference is made to these provisions of the law not to
Dillon /Kardos 01 -556
May 18, 2001
Page 3
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 11030) of the Ethics Act provides as follows:
$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 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 11030) 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 law partnership is a business with
which Kardos is associated. Pursuant to Section 1103(a) of the Ethics Act, Kardos
would be prohibited from using the authority of his office as Township Supervisor or
confidential information for the private pecuniary benefit of himself or the partnership. If a
matter would come before the Township Board of Supervisors that would result in a
financial gain to Kardos or the partnership, Kardos would have a conflict, could not
participate, and would be required to observe the disclosure requirements of Section
11030) of the Ethics Act.
Dillon /Kardos 01 -556
May 18, 2001
Page 4
Having established the above general principles, your specific inquiry shall now be
addressed.
Based upon the submitted facts and conditioned upon the assumption that no
financial gain would inure to either Kardos or the law partnership, Kardos would not have
a conflict and could vote on issues before the Township involving the Country Club
and /or Mitchland, Inc. in that neither Kardos nor the law partnership has any business or
financial relationship with Mitchland, Inc. or the Country Club.
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 Second Class Township Code.
Conclusion: As Supervisor for Middletown Township, Mel Kardos ( "Kardos ") is a
public official subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. 1101 et seq. Based upon the submitted facts and conditioned
upon the assumption that no financial gain would inure to either Kardos or the law
partnership, Kardos would not have a conflict and could vote on issues before the
Township involving the Country Club and/or Mitchland, Inc. in that neither Kardos nor the
law partnership has any business or financial relationship with Mitchland, Inc. or the
Country Club. 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 Advice
pursuant to 51 Pa. Code §13.20. 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