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HomeMy WebLinkAbout21-535 BrantPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL July 9, 2021 To the Requester: Dear Mr. Robert L. Brant, Esquire: 21-535 This responds to your correspondence dated June 10, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether, pursuant to the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., an individual (the Individual) serving as a Township Supervisor would be permitted to resign from the Township Board of Supervisors and subsequently be appointed as the Township Manager by the remaining two Members of the Township Board of Supervisors? Brief Answer: YES. The Ethics Act would permit the Individual to resign from the Township Board of Supervisors and be appointed as the Township Manager by the remaining two Supervisors subject to the condition that the Individual would not use the authority of the Individual's public position as a Township Supervisor or confidential information received by being a Township Supervisor to advance the Individual's prospects of obtaining employment as the Township Manager. Facts: You have been authorized to request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Douglass Township (Township), Montgomery County, Pennsylvania, is governed by a three -Member Board of Supervisors. It is anticipated that the current Township Manager will retire from employment with the Township in the near future. Brant, 21-535 July 9, 2021 Page 2 Pursuant to Section 66301(a) of the Second Class Township Code, 53 P.S. § 66301(a), the Township Board of Supervisors will be responsible for appointing a new Township Manager upon the retirement of the current Township Manager. Two of the three Township Supervisors have expressed interest in serving as the new Township Manager. You note that Section 66301(c) of the Second Class Township Code, 53 P.S. § 66301(c), provides, in pertinent part, that the office of Township Manager is incompatible with the office of Township Supervisor. You seek guidance as to whether there would be any ethical issues with regard to a Township Supervisor (hereinafter referred to as the Individual) resigning from the Township Board of Supervisors and subsequently being appointed as the new Township Manager by the remaining two Members of the Township Board of Supervisors. In particular, you ask whether there would be ethical issues with regard to the remaining two Supervisors: (1) entering into an employment agreement with the Individual as the new Township Manager; (2) setting compensation and other terms of employment for the Individual as the new Township Manager; and (3) directing the Individual in performing the duties of the position of Township Manager. You express your view that there may be ethical issues as to the questions of whether the Individual has sufficient experience and training in municipal administration to be the new Township Manager and whether the remaining Supervisors would have considered the best interests of the Township in appointing the Individual as the new Township Manager. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all the material facts. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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 Brant, 21-535 July 9, 2021 Page 3 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(a), 0). The following terms related to Section 1103(a) 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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, Brant, 21-535 July 9, 2021 Page 4 any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(g) of the Ethics Act is a one-year "revolving door" provision, which provides: § 1103. Restricted activities (g) Former official or employee. --No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, the Individual is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit the Individual from using the authority of the Individual's current public position as a Township Supervisor or confidential information received by being a Township Supervisor to advance an opportunity of employment with the Township. As a Township Supervisor, the Individual generally would have a conflict of interest in matters pertaining to the hiring of a new Township Manager given the Individual's interest in being employed as the Township Manager. Such matters would include, but would not be limited to, determining the necessary qualifications for the position of Township Manager, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, the Individual would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Actwould be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Brant, 21-535 July 9, 2021 Page 5 You are advised that subj ect to the condition that the Individual would not use the authority of the Individual's public position as a Township Supervisor or confidential information received by being a Township Supervisor to advance the Individual's prospects of obtaining employment as the Township Manager, Section 1103(a) of the Ethics Act would not prohibit the Individual from resigning from the Township Board of Supervisors and subsequently being appointed as the Township Manager by the remaining two Members of the Township Board of Supervisors. Cf., Sauder, Order 1774; Stevens, Advice 13-586; Allwein, Advice 13-549; Warren, Advice 12-569. You are further advised that Section 1103(g) of the Ethics Act would not prohibit the Individual from being appointed as the Township Manager during the first year following the Individual's resignation from the Township Board of Supervisors. The Commission has determined that Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of public employment with the former governmental body. See, McGlathery, Opinion 00-004; Long, Opinion 97-010; Confidential Opinion, 93-005. You are additionally advised that absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act, the remaining two Supervisors would not have a conflict of interest with regard to: (1) entering into an employment agreement with the Individual as the new Township Manager; (2) setting compensation and other terms of employment for the Individual as the new Township Manager; or (3) directing the Individual in performing the duties of the position of Township Manager. Lastly, you are advised that the questions of whether the Individual has sufficient experience and training in municipal administration to be the new Township Manager and whether the remaining Supervisors would have considered the best interests of the Township in appointing the Individual as the new Township Manager are not within the purview of the Ethics Act. 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, this advisory does not address any applicability of the Second Class Township Code. Pursuant to Section 1107(11) of the Ethics Act, 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 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 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. Brant, 21-535 July 9, 2021 Page 6 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 § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Brian D. Ja i Chief Counsel