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HomeMy WebLinkAbout94-536 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE ..BUILDING P.O. BOX 11470 •, HARRISBURG, •PA 17108 -1470 TELEPHONE (717) 783 -1610 = ADVICE-OF COUNSEL March 31, 1994 94 -536 Re: Conflict, Public Official /Employee, Township Supervisor, Simultaneous Service, Vice President of Volunteer Fire Department, Use of Authority of Office or .Confidential Information, Vote, Allocation of Funds to Fire Department, Receipt of Payment from Department. This responds to your letter of February 24, 1994 in which you requested advice from the State Ethios Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Township Commissioner, who is also Vice President of the Township Volunteer Fire Department, from voting to allocate funds to the fire department and receive "pay per - call" as a member of the -fire department. Facts: You are Solicitor for Township -A. B, the Chairman of the Board of Supervisors, has requested that you obtain this advisory. B also is a Member of Township A Volunteer Fire Department and serves as C. The volunteers are on a "pay call system" whereby they are paid a nominal amount for responding to fire calls. They are paid by the Fire Department, however, the Township prduides payment to the Fire Department in an amount equal to one -half of : the reported calls. Thus, the payment is not direct, but is an allocation by the Township to the Fire Department. The Board of Supervisors does vote on the allocation to the Fire Department annually. The Township does not pay individual "volunteers. It makes its allocation based upon information received from"_ the Fire Department. The amount received by B in -1993 was $700.00. Based upon the above, you request an advisory from the State Ethics Commission as to the - applicability of the Ethos law to the Confidential Advice, 94 -536 �. March 31, 1994 Page 2 following questions; _._. 1) May the Supervisor receive funds from the Fire Department? 2) May the Supervisor vote on an annual allocation to the Fire Department? Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestgr,has submitted. In issuing the advisory based upon the i4cts:which.the requestor has submitted,.. the Commission does not Q4gage in an independent investigation of the facts, nor does it peculate as to facts which have not been submitted. It is the yrden. the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. S5407(101, (11). An advisory only .affords a defense to the extent the requestor has t disclosed all of the material facts. As a Supervisor for Township A, B is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law: Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage - in conduct that constitutes a conflict-of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 Confidential Advice,, 94 -536 March 31, 1994 Pace 3 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement of the public official /employee would be influenced thereby. 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 Confidential Advice, 94 -536 March 31, 1994 Page 4 minutes of the meeting at. the vote is taken, provided that whenever a governing body wog.d 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 ether legally required vote of approval ,attainable, then such members shall be permitted to vote if disclosures are made as Otherwise provided herein. In the case of a thee- 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. 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 Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar Advice 91- 523 -S. You are further advised that the use of authority of office is more than the mere mechanics of voting.and encompasses all of the tasks needed to perform the functions of .a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with whi a pu b lic official or a member of his immediate family is ass In applying the Ethics Law to this case, the response to your first inquiry is dependent upon the nature of the Fire Department; that is, whether the Fire Department is a part of the Township or a separate and distinct entity apart from the Township. The Commission has determined if a particular statutory enactment prohibits an official, from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, Confidential Advice, 94 -536 March 31, 1994 Page 5 through the authority of public_bffice, would also be a use of the authority of-office Contrary to Section 3(a) of the Ethics Law. In this respect, this Commission :has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Second Class Township Code must be reviewed: 53 F.S. S65513. b) Except' as provided in section 514, no supervisor shall at - the same time hold any other elective or appointive office or position other than township roadmaster or secretary- treasurer. . . . The Second Class Township Code does not appear to contain any exceptions to the above provision that is applicable in the instant situation.. Therefore, if the Fire- Department is part of the Township, taking compensation for fire calls would be contrary to the provisions of the Second Class Township =Code. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which you would receive would be a private pecuniary benefit not authorized in law in light of the foregoing incompatibility provision. If the Fire Department is not a part of the township, but is a separate and distinct entity, then there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if B were to serve as Supervisor and as a member and officer of the Fire Department and receive compensation for fire calls. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to as a Supervisor and as a. member and officer of the Township Volunteer Fire Department. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that ' one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Om..n.ion., 89 =010. In the _Situation outlined above, B would not be serving entities with interests which are inherently adverse to' each other. This conclusion, however, is expressly conditioned upon the assumption that Township A is a separate governmental body from the Fire Department..- Turning to the question of voting on the &liocation, pursuant to Section 3(a) of the Ethics Law, •a 'public •official/public employee is prohibited from using the authority of public Confidential Advice, 94 -536 March 31, 1994 Page 6 such. 1 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 case, the Fire Department is a business with which he is associated. Should a situation arise where the use of authority of- .publid office /employment or confidential information received by holdifc the above public positions could result in a prohibited private pecuniary benefit, for example, voting on the Fire Department allocation, a conflict of interest would arise. In each instance of a conflict of interest, B would be required to fully-abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes). 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 Second Class Township Code. Conclusion: As a Supervisor for Township A, B is a public Official subject to the provisions of the Ethics Law. As a public official, the Ethics Law would prohibit him from receiving payment from the Fire Department if the Department is part of the township. If the Department is a separate and distinct entity, the Ethics Law would not prohibit him from receiving compensation as a Member of the Volunteer fire Department. Since the Fire Department is a business with which he is associated, he may not vote or participate in the matter regarding the allocation of funds by the Township m t the he Department. The disclosure requirements of Section 3(j) must observed. Lastly, the propriety of the 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 requester 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 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 Confidential Advice, 94 -536 March 31, 1994 Page 7 scheduled and ,a formal Opihion -will be issued by the Commissi'bn. Any such appeal must be in writing 1d mUst be .a fight received at the Commission within fifteen 1 days 'Cif the date bf this Advice pursuant to 51 Pa.Code §13.2011. MI appeal ms be received PP � at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). cerely, Vincent '5 bopko Chief Counsel