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Home My WebLink About94-524 PetroskyKatherine B. Petrosky Township Manager Township of North Huntingdon Town House 11279 Center Highway North Huntingdon, PA 15642 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O.. BOX 1 1470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1810 ADVICE OF .COUNSEL March 9, 1994 .: . 94 -524 Re: Conflict, Public Official /Employee, Township Board of Commissioners, Use of Authority of Office or Confidential Information, Participation in Township Deferred Compensation Plan, No Cost to Township. Dear Ms. Petrosky: This responds to your letters of October 22, 1993 and February 4, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon township commissioners from participating in the township's 457k Deferred Compensation Plan which is operated at no cost to the township. Facts: You are the Township Manager of North Huntingdon Township. The Township is considering establishing a 457k ,Deterred Compensation Plan for its employees. The Township would not be contributing any funds to this plan and the program would be operated at no cost to the Township. You question whether the Board of Commissioners would be permitted to participate in this plan by having a portion of their salary as Commissioners deferred into this plan. In your letter of February 4, 1994, you Indicate that you have received authorization from the seven Commissioners to request this advisory. Miscussion: Mt is initially noted that pursuant to Sections 7(10 and 7(11) of 'the Ethics Law, 65 P.S. $5407(10), (11),- advisories are .issued to the requestor based upon the facts which the :requrestor has . =submitted. In issuing the advisory based ; upon .the facts 'which tths requester ;has submitted, the Commission does fit Petrosicy, Katherine B., 94 -524 March 9, 1994 Page 2 engac 9 in 4A ilndependent investigation of the facts, nor does it speculate 4s to facts which have not been submitted. It is the burdt20 of Vhe feWOOtor to truthfully disclose all of the material fact§ Fel VI te the inquiry. 65 P,S, 55407(10), (11). An adv sgpy only ff a ,ts .a ; defense to the extent the requestor has truthfully g sc1osed ail of the material facts. As cg or Worth Huntingdon Township, these individuals aFe public officials as that term is defined under the Ethicg TAW! a `11eAae they are subject to the provisions of that law. Sestign 4(a) of the Ethics Law provides: Sect on Restricted Activities. (a) Na public •. official or public m+a le a shall engage in conduct that censt4t1 ea a conflict of interest. The fglle4iaag to . s are defined in the Ethics Law as follows: Section 2. Definitimu "'gqnfiiet or eenflict of interest." Use by a rablio official or public employee of the au @T4.ty of 114.a office or employment or any cOnlitqAttaAl information received through his hQAck4ng > i„q onto* Q encloyment for the prlyl pe.oAniary benefit of himself . a der of hi% Imme4iate Tamil r Q at business with which ke 04 a. member of bris immediate family is 44%004.4A "CConfli;ct." or "'conflict fflict of internee '"° 4pkg sot: ineludo an action having a de mi> % eQ@ .omic impact- car wKk enacts to the saw. degree a. class conaistimg of the genera]. p30?., . c or a< subclass consisting of act indust y1,, 00CuP4tiof or other grump whie incXud t .e, public; official QC public empl of •,, tern$ - of l�,i:', immedi family or a box wit l which be or * member of his 4mme.40 €'am -illy, is ass-eclat "ApAbpritx of ottito* or employment " The actual, Roger pRovidedi br law, the exercise of which i* neoessary to the performance of duties an4a responsibilities unique to a particu1a - public office or positimof public emplo en . Petrosky, Katherine B., 94 -524 March 9 1994 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a.piiblic 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 judgement 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 be any transgression thereof but merely to provide a complete response to ithe question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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. Petrosky, Katherine 3. 94 -5Z4 March 9, 1994 Page 4 In the event that the rewired; abstention results in the inabilitgt of the stusearnmentaX body to take act ,ost became a ma j'ority- is unattainable due: ttre the, abstention (s,) from conflict: under the Ethics Imo,, then in , that event particizstiont is geturissible• pro<aidedi the &iis=losumeen requirements noted above are folloiNed. , , gralga, . Advice 91-523-S. . 121 ndirtg the question, of 'whether thge Townstpiit, CostmtiSsi.oners may participate in. the Deferred Compensattion. Plate at ttrAir con-aspens., the question of whether such participation is permissilate Mader the First Class Township Code cannot tee addressed. %iince the ate Ethics Cbmrais lion does., nit ha** jurisdiction to interpret the provisions of the First Class Township Cam„ this advice is Limited ssly_ to the propriety of such participatianunder.the Ethics Law. Undo: Section 3(j) , if tie Township Commissioners' participation in the plan would result in a conflict of interest* they wOuld be- rewired to comply with the provi s i orts and restrictions set forth in that section. On the other hand, if there is no conflict of interest, then Section 3 (3) would pose no ree tr'Lct> one on . their activities. The use of the authority,' of their positions as Township Commissioners for private pecuniary benefit would; constitute a conflict of interest. %n this case, since you have factually stated that there would bes+ no private pecuniary benefit to the Commissioners, in that the Deferred Compensation Plan is operated at no cost to the Township there would be no conflict of interest based upon the foregoing tactual. assumptions. Since there is no conflict of interest, the provisions of section 3(j) would not apply. Therefore, under the Ethics Law the Township Commissioners may participate in the 457k Deferred Compensation. Plan. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics' Law. Specifically not addressed herein is the applicability of the First Class Township Code. Conclusions . As Commissioners for North Huntingdon Township, these individuals are public officials subject to the provisions of the Ethics Law. They may not participate in the Deferred Compensation Plan if such participation would result in a conflict of interest. Eased upon the factual assumption that the Plan is operated at no cost to the Township and no private pecuniary benefit is to be received by the Commissioners by participating in the flan, no conflict of interest results and such participation would not be prohibited by the Ethics Law. Lastly, the propriety of the Petrosky, Katherine B., 94 -524 March 9, 1994 Page 5 proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 fifteen (15) 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). ncerely, 0 Vincent J. Dopko Chief Counsel sft :eb y ti i v � Its ! E • P;:' t t •