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HomeMy WebLinkAbout02-005 PavlovicOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: September 5, 2002 DATE MAILED: September 25, 2002 02 -005 Peter Pavlovic, Supervisor Allen Township Supervisors 4714 Indian Trail Road Northampton, PA 18067 -9492 Re: Conflict; Public Official; Township Supervisor; Construction of School Facilities; Prospective Employment; School District; Chief Security Officer; Voting Conflict Exception; Legally Required Vote; Five - Member Board; Deadlock. Dear Mr. Pavlovic: This Opinion is issued in response to your advisory request received on June 3, 2002. I. ISSUE: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a township supervisor would have a conflict of interest in matters pertaining to the construction of school facilities within the township, when the supervisor is negotiating with the school district for employment as its Chief Security Officer. II. FACTUAL BASIS FOR DETERMINATION: As a Township Supervisor for Allen Township ( "Township "), located in Northampton County, you request an advisory opinion from this Commission regarding the conflict of interest provisions of the Ethics Act. You have submitted facts which may be fairly summarized as follows. Approximately six months ago, the Northampton Area School District ( "School District ") approached the Township regarding the construction of school facilities within the Township. Although the School District has not yet filed a formal application, it is expected to do so soon. Pavlovic, 02 -005 September 25, 2002 Page 2 On May 20, 2002, the School District offered to employ you as a Chief Security Officer. You are currently negotiating the terms of such employment with the School District. You state that at no time during the employment negotiations has your role as a Township Supervisor been discussed. You are concerned that your prospective employment by the School District could result in a conflict of interest for you as a Township Supervisor in matters pertaining to School District project(s) within the Township. You pose the following specific inquiries: (1) Whether, pursuant to the Ethics Act, you would be precluded from voting as a Township Supervisor on plans /applications or other issues pertaining to the proposed School District project if you would accept employment with the School District; and (2) Whether, in the event of a conflict, you would be permitted to break a tie vote of the other four supervisors on any application, provided that you would disclose your employment with the School District. By letter dated July 25, 2002, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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, this 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 a Township Supervisor, you are a public official subject to the provisions of the Ethics 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 pertaining to conflict of interest 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 Pavlovic, 02 -005 September 25, 2002 Page 3 65 Pa.C.S. § 1102. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to erform the functions of a given position. See, Juliante, Order 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: §1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). 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. Pavlovic, 02 -005 September 25, 2002 Page 4 Section 1103(j) 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 of interest, Section 1103(j) requires 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 or supervisor. However, Section 1103(j) further provides certain narrow exceptions where voting is permitted, despite a conflict, if stringent prerequisite conditions are met. In applying the above provisions of the Ethics Act to your inquiry, your first question is whether you would be precluded from voting as a Township Supervisor on plans /applications or other issues pertaining to the proposed School District project if you would accept employment with the School District. 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. In this instance, your prospective employer, the School District, is a "political subdivision," not a "business" as defined by the Ethics Act. 65 Pa.C.S. § 1102. Thus, a use of the authority of office for a pecuniary benefit flowing only to the School District would not establish the requisite elements for a conflict of interest under Section 1103(a) of the Ethics Act. See, Warso, Order 974. However, to the extent such matters before the Township would involve a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, a conflict of interest would exist for you. For example, if the School District's hiring of a Chief Security Officer would depend upon the Pavlovic, 02 -005 September 25, 2002 Page 5 Township's approving the proposed project, you would have a clear conflict of interest under Section 1103(a) in matters pertaining to the project, based upon the reasonable and legitimate anticipation of your employment as the School District's Chief Security Officer. See, Amato, Opinion 89 -002 at 5 (citing Sowers, Opinion 80 -050); Garner, Opinion 93 -004. Your second question is whether, in the event of a conflict, you would be permitted to break a tie vote of the other four supervisors, provided that you would disclose your employment with the School District. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.q., Bloss, Order 869; Garner, supra. You serve on a five - member board. The only exception that enables a member of a five - member board to vote despite a conflict of interest requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 1103(j). When both of these conditions are met, such that the exception is applicable, the exception allows for voting only —it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. Klutzaritz, Order 1078. In order for the first of the above conditions to be met as to a five - member board of township supervisors, at least three members of the board must have conflicts of interest under the Ethics Act. See, 53 P.S. § 65603; Klutzaritz, Order 1078 at 6. The condition is not met if only one or two members of the five - member board have conflicts, Klutzaritz, supra., or if such members abstain for reasons other than a conflict of interest under the Ethics Act. Therefore, you are advised that when you, as a member of the five - member Township Board of Supervisors, would be the only member with a conflict of interest under the Ethics Act, you would not be permitted to vote to break a tie vote of the other four supervisors. Finally, it is noted that Sections 1103(b )/1103(c) of the Ethics Act would prohibit any improper influence based upon understanding(s) as to your employment by the School District and your vote, official action or judgment in matters pertaining to the School District. 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. IV. CONCLUSION: A township supervisor 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. A township supervisor's use of the authority of office for a pecuniary benefit flowing only to a school district which employs him would not establish the requisite elements for a conflict of interest under Section 1103(a) of the Ethics Act. To the extent matters before the township would involve a private pecuniary benefit to the township supervisor, a member of his immediate family, or a business with which he or a member of his immediate family is associated, a conflict of interest would exist for the township supervisor. The exception at Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. The only exception that enables a member of a five - member board to vote despite a conflict requires Pavlovic, 02 -005 September 25, 2002 Page 6 that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 1103(j). The above conditions would not be met when only one member of a five - member township board of supervisors would have a conflict of interest under the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair