HomeMy WebLinkAbout94-556 PawlushSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 19, 1994
Daryl Pawlush
Chairman
Conyngham Township Board of Supervisors
P.O. Box 1
Mocanaqua, PA 18655
94 -556
Re: Conflict, Public Official /Employee, Township Supervisor,
Private Employment, Business with which Associated Use of
Authority of Office, Signing Checks, Vote, Payment of Invoices
to Business, Second of Motion.
Dear Mr. Pawlush:
This responds to your letter of March 21, f994 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 a Township Supervisor
from voting on matters relating to or signing checks for a business
with which he is associated.
Facts: You are Chairman of Conyngham Township, Board of Supervisors
and have presented several situations and have requested advice as
to your conduct for each such situation.
Situation 1: The Board of Supervisors approves an invoice
by a vote of 2 -0, with one abstention due to a possible
conflict of interest. The abstention is because the
invoice is from a relative or the abstention is because
the invoice is from a firm where the Supervisor works as
a project manager; that is, he is an employee rather than
an associate, partner or officer of the corporation.
Your question is whether, in both cases, the abstaining
Supervisor may sign the check for payment of the approved
invoice.
,Situation 2: You have worked for the same engineering
company since December 26, 1983 In 1985, Conyngham
Township sought, the services of an engineer and your firm.
Pawlush, Daryl, 94 -556
April 19, 1994
Page 2
was selected. You note that you have been a lifetime
resident of Conyngham Township and that fact may have
contributed to the selection of your firm. Your firm has
provided continual engineering services from about 1985
to this date on an as needed basis. In 1989, your firm
was also selected to design, inspect and manage a sewer
construction project within the township. You personally
were your firm's representative to the township and were
in charge of the project until your election as a
Supervisor in November, 1993. Since taking office in
January, you have abstained from voting on any matters
regarding the sewer project or any work involving my
firm.
At your February, 1994 Township meeting; a motion was
made too pay all the bills regarding the sewer project.
The motion was passed on two yes votes and your
abstention. One.of the Supervisors that voted yes to pay
the bills has refused to sign the check to your firm.
You state that these invoices from your firm are routine
inspection and management invoices that are performed
under a contract with the Township. The contract was
executed in about 1989 or 1990, prior to your election.
These invoices are 'submitted to a project administrator,
the Luzerne County Redevelopment Authority (LCRA), for
review and compliance with the contract prior to the LCRA
placing the invoices on an agenda for action by the Board
of Supervisors, _
The question is whether you may sign the check. If not,
you ask what- the board may do since the invoice is for
contracted services : and .non. - payment may cause interest to
accrue, among other legal complications.
In a subsequent _. letter, you indicated that it is
Township policy that two signatures are required on any
check drawn against Township accounts and that you would
always favor such policy since it helps guard against any
impropriety that a one-signature system might create.
:Situation 3: This situation is similar to Situation 2.
At your March, 1994, Township meeting, a motion to
approve_ the invoices for the " sewer project was ' made and
seconded. On a role call vote, you abstained, one
supervisor voted yes, and the other supervisor, the same
one that would not sign the check in Situation 2 above,
abstained without reason. Therefore, the sewer project
invoices were not approved. This situation may put your
Township in a bind. The sewer project invoices contain
not only your firm's contracted costs, but those of a
Pawlush, Daryl, 94 -556
April 19, 1994
Page 3
contractor, administrator, law firm, eto. These costs
are funded to the Township by PENNVEST. The Township
Supervisors approve the invoices, the LCRA submits them
to PENNVEST, PENNVEST sends the LCRA a check in the
Township's name, the LCRA writes the checks fdt the
Supervisor's signatures, and then the checks are sent to
the payees. This process is usually accomplished 4ithift
30 days from the date of the Township's meeting. You
note that these procedures have been in place and have
been conducted for over a year prior to your election.
The problem is that these invoices are contractually due
within thirty days of Township approval. The question is
whether you may vote for the routine approval of invoices
regarding the sewer project.
Situation 4; Can a Supervisor second a motion if later he
must abstain from voting due to a possible conflict of
interest?
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. §S407(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 P.S. SS407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a Supervisor for Conyngham Township, Luzerne County, you
are a public official as that term is defined under the Ethics Law,
and hence you are 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.: Defini
"Conflict or- conflict of- interest." Use'
by a public= official- car public empioyfee Of the='
authority of his of.fioe or empl6yment; dr any
Pawlush, Daryl, 94 -555
April 19, 1994
Page 4
confidential information received through his
holding public office or, employment for the
private pecuniary benefit of himself, a member
bf his immediate family or a business with
whidh 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
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
.. 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
employmeht
Immediate family." A ,parent, =spouse,
child, brother or sister -
• "$ usiness 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 .Lawprovide
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 Ethic's Law provides as follows:
Section_ 3 ... Restricted.-_ activities
(j) Where votiig conflicts are not
otherwise addressed -by the Constitution Aof
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
Pawlush,°Daryl, 94-55'6
April 19, 1994
Page 5
matter that wod d - result in a conflict of
in terest 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 meMor-andum 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 arty -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.
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.
In applying the Ethics Law to this case, it is noted that the
Ethics Law, pursuant to Section 3(a), prohibits a public official
from using the authority of office public office or confidential
information received by holding a public office for the private
pecuniary benefit of the public official, any . fneibber of his
immediate family, or any business with which the public official or
a member of his immediate family, or any business with which the
public official or a member of his immediate fandly is associated.
Your spec - ic ' inquiries will. mow ber addressed.
As to your first inquiry, : you have presented: two earap14.
Pawlush, Daryl, 94 -556
April 19, 1994
Page 6
the first, you abstain from voting on an invoice that is for a,
relative You do not identify the relationship, therefore, it. 1s
factually assumed for the purposes of this advisory that the
relative is a member of your immediate family as defined above.
because if the - person was not an immediate family member,, rra
conflict would exist. In this case, since it is assumed that t
person is an immediate family member, a conflict would ex st
pursuant to Section, 3(a) of the Ethics Law, While Section, 3 (fj)
provides some exception. to act despite a conflict, Section 3j',)
would not be applicable here since that section deals with votin`c,
not check signing. Further, Section 3(j) applies only whe or
supervisor votes yes and ..a second votes no; under• tho
circumstances, the third supervisor with the conflict may vote
after the initial abstention_ and disclosure as set forth in that
section. Such facts do not exist here. Finally, Krushinski,'Ordr
168, held that a- public official who voted to approve - invoices of
a business with which he was associated did not contravene, ttie
Ethics Law where the invoices were routine and related to pre -Set
cost items
The above discussion, however, deals with voting, not check
signing. The 'Commission has determined that signing checks is the
use of authority of office See Bartorillo, Order 889 where the
Commission found a violation of the Ethics Law for a use of
authority, of -office which included in part check signing. See also
Gerhart, Order 530: Therefore, in this case, signing checks for a
member of your immediate family would be a prohibited use of
authority of office for the receipt of a private pecuniary benefit
fora member of your immediate family and would be in violations of
the Ethics Law. Likewise, the same analysis applies to signing
checks for a business with which you are associated. Again, "such
activity would be in violation of the Ethics Law.
As to your second inquiry, the response is the same as with
the first. Signing checks for a business with which you are
associated would constitute prohibited use of authority of offica
for the private pecuniary benefit of your firm. As to -your
question regarding resolution of this problem, it is not within the
jurisdiction of this Commission to interpret the Second Class
Township Code or specific township ordinance and You h0y,e
indicated that your township policy is to have two signatures. my
telephone, you stated.that this is township policy not dictated by
the bank, - Township, Ordnance or the Second Class - Towns4p ; Code.
One solution would be t o have the Township change its po i4 to
allow only one "signature, :howeder, it is noted that you have - *wed
that you would always favor a two-signature policy as it lese.ns
the possibility of any impropriety a one - signature system .might
create.
As to your third inquiry, the response depends upon +the nature
Pawlush, Daryl, 94 -556
April 19, 1994
Page 7
of the bills list. Conflicts of interest would arise where the use
of authority would result in a private pecuniary benefit to a
business with which you or a member of your immediate family is
associated. You would have a conflict of interest in any matter
before the Township involving your firm, including the payment of
bills to your firm on the bills list, 'and Section 3(j) must be
followed. Again, it is noted, however, that in Krushinski,
the Commission held that a public official who voted to approve
invoices of a business with which he was associated did not
contravene the Ethics Law where the invoices were. routine, not
subject to dispute or adjustment and related to items for which
there were pre -set costs. In this case, if the . bills to your firm
are routine, not subject -to dispute or adjustment and relate to
items for which there are pre -set costs, you would not be
prohibited from voting on the approval of these invoices.
As to your fourth inquiry, reference is-made to Garner,
Opinion 93 -004. In that case, the issue was whether under Section
3(j) of the Ethics Law, a supervisor of a three - member board in a
Second Class Township may second a motion even if he has a
conflict. The Commission held that the General Assembly in
enacting Section 3=(j would not have allowed a public
official /employee on a three member board who has a conflict to be
able to vote unless a second to the motion could be made so that
the matters would be in the posture for a vote. Thus, the
Commission stated that since there is a need for a second to a
motion in order to make Section 3(j) of the Ethics Law operative,
the General Assembly intended as to three members boards for the
public official with a conflict to be allowed to second so that if
the other supervisors became deadlocked, the public - official could
then vote provided the disclosure requirements are satisfied. In
light of the foregoing, you are advised that Section 3(j) of the
Ethics Law does allow you to second a motion where a second is not
forthcoming in a matter in which you have a conflict and may later
be required to abstain from voting.
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 Supervisor for Conyngham Township, Luzerne Cousnty,
you are a public official subject to the provisions of the Ethics
Law. You may not sign checks for invoices for members of your
immediate family or a business with which you are associated as
such would constitute an unauthorized use of authority of office
for the receipt of a private pecuniary benefit. You may vote on
bills for your firm, provided such are routine, non - contested and
Pawlush, Daryl, 94 -556
April 19, 1994
Page 8
pre -set in their amount. You may also second a motion on a matter
in which you have a conflict and would later have to abstain from
voting. 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 p roviding 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).
cerely,
s ..,
, Vincent J. •opko
Chief,Counsel