HomeMy WebLinkAbout92-545Ms. Susanne McKeon 92 -545
1115 Richard Lane
Feasterville, PA 19053
Re: Conflict, Public Official /Employee, Township Supervisor,
Vote, Use of Authority of Office, Volunteer Fire Company,
Supervisor and Immediate Family as Members of Volunteer Fire
Company.
Dear Ms. McKeon:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O.; BOX _11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 26, 1992
This responds to your letter of January 4, 1992, 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 with regard to official action financially affecting a
volunteer fire company of which the supervisor and the
supervisor's immediate family members are members, or affecting
other entities competing for such funds.
Facts: As one of five Supervisors in Lower Southampton Township
in Bucks County,. Pennsylvania, and having served in that
capacity since 1984, you seek the advice of the State Ethics
Commission. You present the basic issue of whether a Supervisor
who is also a member of a volunteer fire company, or the spouse
of a volunteer fire company member, may vote to distribute Relief
Association money to that company, or vote against reducing that
allocation.
The situation involves the Volunteer Fireman's Relief
Association. Established under Act 84, a surcharge is collected
from foreign fire insurance companies and funds are distributed
through the municipality to volunteer fire companies recognized
bZ municipalities. There are two volunteer fire companies
recognized by the Lower Southampton Township's ordinance.
The funds, which are audited by the State Auditor General,
have specific uses and, are intended to provride personal
protection for the - members _ of _ the_ Relief Association as 'an
incentive to join fire Companies. This can include protective
equipment__ such as. breathing apparatus, helmets, coats, and the
like. Lower Southampton Township has also used it to enclos
Ms. Susanne McKeon
February 26, 1992
Page 2
the cab of a vehicle and to purchase a special service vehicle
which refills air bottles, all for the protection of the fire-
fighter. Other expenses can be for life insurance or a death
benefit fund, reimbursing members for lost income in case of
injury, or aid to a member who is financially distressed.
Funds for the Relief Association are distributed to the
Township by the State, and the municipality must distribute the
money within sixty days. Until about two years ago, these
transactions were not part of the Township's budget or accounts
payable. They now are, and you vote for the budget and payments
to the companies to comply with state and local laws.
An independent rescue squad requested recognition by -the
Township of their newly formed Relief Association to receive a
share of the funds. The Board of Supervisors voted to recognize
the Tri- Hampton Rescue Squad as part of the fire service of the
Township, and later voted to distribute to them ten percent of
the relief money allocated to the Township. Subsequently, the
two Relief Associations of the fire companies filed , a mandamus to
require the Board to revoke that resolution recognizing the
rescue squad's Relief Association. No action has been taken in
court, but the Board voted to place the funds in an interest
bearing account while the three parties involved negotiated.
You state that you, your husband, and,your two sons are all
members of one of the two volunteer fire companies in the
Township. You have always voted to approve the annual budget,
including millage for fire service, and monthly accounts payable
when the funds are distributed to the fire companies. The fire
company provides an annual report of expenses to the Township as
required by the Second Class Township Code. You note that your
previous Solicitor advised you that there was no conflict of
interest because you state that there is no financial benefit,
directly or indirectly, to you or any member of your family.
When the issue of reducing the fire companies' allocation
arose, you felt that there would be a conflict of interest
'because of the possibility, however remote, that you or a member
of your, family could benefit financially from the Relief
Association, and that therefore, it would benefit you to vote
against the motion. Yon _abstained on the advice of your
Solicitor, as did one other Bbard Member who is also a member of
the fire company.
When the, tiino limit to _distribute the funds arrived, the
Solicitor advised that the funds be escrowed during the
negotiations because of the law suit. However, one of the
Supervisors was absent from the meeting, . leaving only two votes.
On further advice from the Solicitor that a vote to escrow the
funds would not be a conflict, you voted for the motion, as did
the otter Supervisor /member.
You state that the need for guidance at this time arises
from the fact that two new Supervisors will be seated in January.
Of the two Supervisors leaving, one had abstained on this issue
and one had voted. Of the two new Supervisors, one is the spouse
of a fire company member (and may also be a member), and the
-other may not vote the same way as the Supervisor he is
replacing:' That is, you expect that two Supervisors will vote to
distribute funds to the Rescue Squad, one will vote against, and
two will abstain. You are concerned that this situation may
create -a deadlock which` will place the Board` in violation of the
, law, and possibly of a court order.
Based upon all of the above, you request an advisory from
this Commission as to voting restrictions upon you, or any other
Supervisor who is •a member or spouse of a fire company member.
You further specifically inquire as to whether a Supervisor who
is a member of a volunteer fire company may vote:
1. To adopt a budget with millage for the fire
company;
Ms. Susanne McKeon
February 26, 1992
Page 3
2. To approve accounts payable distributing tax
money;
To adopt a budget allocating relief money
according to the Township Ordinance;
4. To approve accounts payable distributing
relief funds;
5. Against changing a township ordinance which
would reduce the allocation to the fire
company;
6.` To revoke a resolution or other vote by the
Board which has reduced the allocation to the
fire company, thereby voting to increase the
allocation;
7. For any of the above to comply with a court
order if there is otherwise a conflict;
8. For any of the above if not a member of a
fire company, but if a spouse is a member of
the fire company; and
Ms. Susanne McKeon
February 26, 1992
Page 4
9. For any of the above if the Supervisor,
spouse, and two sons are members of the fire
company, but one son is also a. member of the
rescue squad which would benefit from funds
being reallocated.
You state that the possibilities are, very confusing.
Although wishing to avoid any appearance of .conflict, the
possibility of any benefit to you, you . feel, is remote. You
state that it is more likely that the Board of Supervisors with
its new members will want to vote to resolve the issue one way
or another, or that the court will order the Board of Supervisors
to do so.
Noting that the first regular meeting after reorganization
is on January 22, 1992, you seek an expedited advisory.
Discussion: It is initially noted that your request for advice
may only be addressed as to your proposed future conduct. Past
conduct may not be addressed in the context of an Advice /Opinion.
A reading of Sections 7(10) and (11) of the Ethics Act makes it
clear that an opinion /advice may be given only as to prospective
(future) conduct. If the activity in' question has already
occurred, the Commission may not issue an opinion/advice but any
person may then submit a signed and sworn complaint which will be
investigated by the Commission if there are allegations of Ethics
Law violations by a person who is subject to the Ethics Law.
If is further initially noted that your request for advice
may only be addressed insofar as it regards your own conduct. To
the extent you have raised general inquiries regarding
Supervisors other than yourself, such general requests for advice
would be considered third -party requests and may not be
addressed.
As a Township Supervisor for Lower Southampton Township in
Bucks County, Pennsylvania, 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
Ms. Susanne McKeon
February 26, 1992
Page 5
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law
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 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.
"Immediatelamily. A parent, spouse,
child, brother or sister.
"Business." Any corporation,
partnership, sole proprietorship, firm,
enterprise, franchise, association,
organization,•self.semployed individual,
:holding company, joint stock company,
receivership,_ trust or any legal entity
corganized . for . profit .
"Business with-whih he is associatede"
Any - business : in ; the person - or a- member
Ms. Susanne McKeon
February 26, 1992
Page 6
of the person's immediate family is.
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. Reference is made to these provisions of the
law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the 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
Ms. Susanne McKeon
February 26, 1992
Page 7
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), then in that
event participation is permissible -provided the disclosure
requirements noted above are followed. See, Mlakar, :advice 91-
523 -S.
In applying the above provisions of the Ethics Law to the
inquiries which you have raised regarding your prospective
conduct as a Township Supervisor, Section 3(a) of the Ethics Law
:prohibits a public official /public employee from using the
authority of public office/employment or confidential information
received by holding such a public position for the private
pecuniary benefit of thg 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.
Your spouse and your sons are your immediate family members
as defined in the Ethics Law.
Furthermore, it is conceivable that a fire company and /or
rescue squad could be deemed to be within the definition of
"business" as set forth in the Ethics Law. However, that
question need not be addressed in this advisory because the
submitted facts do not reveal any of the designated
relationships betiaeen you or your immediate family members and
the fire companies and rescue squad so as to fit within the
definition of "business With which` he is associated." It does
not appear from the facts that you or any member of your
immediate family serves as a director or officer of any of these
entities, and'the remaining designated relationships of owner,
employee, or individual having a financial interest would not be
applicable to a` volunteer fire company or rescue squad.
Thus, in order for a conflict of interest to arise for you
as , a Supervisor in matters pertaining to the volunteer fire
{companies or the rescue squad, there 'would have to be the element
of a -private pe unitary 'benefit for you or a -member of your
Immediate family-.
Ms. Susanne McKeon
- February 26, 1992
Page 8
You are advised that you would have a conflict of interest
as to any matter where the use of the authority of your office or
confidential information received by holding your public position
would result in a private pecuniary benefit for - you.or any member
of your immediate family. Specifically with regard to the
Township's distribution of Relief Association funds, you have
acknowledged that such funds may be used for life insurance or a
death benefit fund, reimbursing members for lost income in case
of injury, or aid to a member who is financially distressed. As
members of the fire company, you, your spouse, and your sons
could personally financially benefit from these funds allocated
by the Township to the fire company of which you are members.
Thus, you would have a conflict of interest in matters pertaining
to the distribution of Relief Association money to the fire
£ompany you serve, the rescue squad your son serves, or the other
fire company which competes for such funds. See, Pepper, Opinion
87 -008. The conflict of interest would arise whether you are
voting to distribute Relief Association monies or voting against
reducing such an allocation.
As for what you characterize as an expected deadlock in the
vote of the Supervisors with regard to distributing the funds to
the rescue squad, you are advised that unless the number o
Supervisors required to abstain from voting under the Ethics Law
makes the majority or other legally required vote of approval
unattainable, you would not be able to vote despite a conflict.
65 P.S. §403(j). In the case of a five member Board, three
Supervisors would have to have a conflict under the Ethics Law
for the exception of Section 3(j) to become operative. Mlakir,
Advice 91-523-S. The mere fact that they may disagree would not
enable you to vote despite your conflict.
Turning to your specific inquiries, the proposed official
actions would constitute a conflict of interest for you in each
instance where there would be a private financial benefit to you
or a member of your immediate family.
In considering your first two specific inquiries, you have
failed to indicate whether you or your immediate family members
would receive a private pecuniary benefit, so those inquiries may
not be conclusively analyzed herein. You would clearly have a
conflict: of interest in matters involving the allocations or
distribution of relief funds_ such as in the fourth, fifth and
sixth inquiries. As for the third - inquiry, you would have a
conflict as to the portion of the budget allocating relief
monies,, but if the allocation were to be separately decided„ with
you abstaining and meeting the disclosure requirements of Section
Ms. Susanne McKeon
February 26, 1992
Page 9
3(j), you could then vote on the budget which would include the
previously decided relief allocation
In seventh specific inquiry, you ask whether you could
vote to comply with a court order if you otherwise had a conflict
of interest. • While you would undoubtedly be required to - comply
with any court order directed to you in the absence of a
supersedeas, it is unlikely that it would specifically direct
you to vote where you , have a conflict of interest.
With regard to your eighth specific inquiry, that inquiry
has been addressed in the discussion above. As noted above, the
Section 3(a) restrictions encompass private pecuniary benefits
to-immediate family members which would by definition include a
spouse or a child
With regard to your ninth specific inquiry, the facts which
you have submitted do not indicate any of the necessary
relationships to make the rescue .squad a business with which your
son, an immediate family member, is associated. As noted above,
you would have a conflict of interest in using the authority of
your office or confidential information received by holding your
public position for the private pecuniary benefit of you, your
spouse, your sons, or any other member of your immediate family,
or any business with which you or a member of your immediate
family is associated.
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 Township Supervisor for Lower Southampton
Township, you are a public official subject to the provisions of
the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you
may not use the authority of office or confidential information
received by holding: your public position for the private
pecuniary benefit of you, your 'spouse, your sons, any other
member of your immediate, or a business with which you or a
member of your immediate family is associated. You would
specifically have a conflict of interest as to natters involving
the distribution of Relief Association money to the fire company
which you serve or to the rescue squad which your son serves,
whether the distribution would be an allocation or a vote against
reducing an allocation. You could not use the authority of your
office or zonfidential information received by holding your
Ms. Susanne McKeon
February 26, 19 9 2
Page 10
public position to the detriment of other entities which compete
for such Relief Association funds. 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 and
evidence of good faith conduct in any other civil 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 request that the full
Commission review this Advice. A personal appearance before the
Commission will be scheduled and 'a formal Opinion from the
Commission will be issued. Any such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code §2.12.
Sincerely,
Vincent J. Dopko
Chief Counsel