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HomeMy WebLinkAbout21-543 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 19, 2021 To the Requester: 21-543 This responds to your letter received \[REDACTED\], by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: 1. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1101 et seq., would impose prohibitions or restrictions upon a Township Supervisor personally and privately providing a gift of cash to a Township Manager in lieu of a publicly funded employment bonus? Brief Answer: NO. As presented, there is no use of office by the public official in violation of the Ethics Act. HOWEVER, to the extent the gift is intended to influence the official action or judgment of the Township Manager, the giving of the gift would be in violation seeking/accepting improper influence Facts: You served as the Solicitor for \[TOWNSHIP\] Board of Supervisors. You have been authorized by the Board of Supervisors to request an advisory opinion from the State Ethics Commission based on submitted facts, summarized as follows. \[SUPERVISOR 1\] is Chairman of the Board of Supervisors of \[TOWNSHIP\], a Second Class Township located \[COUNTY\], Pennsylvania. The Township Board of Supervisors consists of three members, and \[SUPERVISOR 1\]s spouse, \[SPOUSE\], serves as the \[TOWNSHIP Confidential, 21-543 August 19, 2021 Page 2 EMPLOYEE\]. You stated that \[SUPERVISOR 1\] recuses himself from all votes and discussions regarding his spouses salary, bonuses, and any personnel matters involving his wife. The Township Manager is \[MANAGER\]. At the \[REDACTED DATE\], Board of Supervisors meeting, there was a public discussion regarding the possibility of providing \[MANAGER\] an employment bonus for his services performed during the period of time that the Township did not have live meetings, but instead relied on virtual meetings. One of the Supervisors was against the proposed bonus, prompting \[SUPERVISOR 1\] to inquire whether or not he could personally write a check to \[MANAGER\] for the proposed bonus amount, in lieu of the Township using public monies. It is noted that \[MANAGER\] is the employment supervisor of \[SUPERVISOR 1\]s spouse, and that the Code of Ordinances for the Township grants the Manager oversight and primary responsibility as to Township personnel including the ability to make recommendations as to hiring, firing, promotions, demotions, and any discipline of Township personnel. The question that you have posed to the State Ethics Commission is whether or not \[SUPERVISOR 1\] can, from his private/personal monetary funds, provide the Township Manager with a gift of cash equivalent to the bonus that had been proposed by the Township? Discussion: It is initially noted that 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 material facts. As a Township Supervisor, \[SUPERVISOR 1\] is a public official and as Township Manager, \[MANAGER\] as those terms are defined in the Ethics Act, and both are therefore subject to the provisions of the Ethics Act. Section 1103 of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (b) Seeking improper influence.--No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or Confidential, 21-543 August 19, 2021 Page 3 promise of future employment based on the offerors or donors understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence.--No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(a),(b),(c). The following terms 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. Confidential, 21-543 August 19, 2021 Page 4 Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/public 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. 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. Generally, there is no per se prohibition under the Ethics Act as to the rece- strings-See, Cooper, Opinion 92 -009 (Citing Wolfgang, Opinion 89 -028). A gift or gifts valued in the aggregate at $250.00 or more must be disclosed on the Statement of Financial Interests in accordance with Section 1105(b)(6) of the Ethics Act, 65 Pa.C.S. §1105(b)(6). Such disclosure must include the name and address of the source, the amount of the gift or gifts, and the circumstances of each gift. Gifts that do not meet the aggregate threshold of $250.00 need not be disclosed. Although there is no prohibition as to gift acceptance, the Commission has found violations of the Ethics Act when public officials/public employees have accepted gifts and acted upon matters that the donors had pending before the governmental body. See, Sickles, Order No. 901; Helsel, Order No. 801; Short, Order No. 1629. The acceptance of a gift with a de minimis (insignificant) value would not in and of itself result in a conflict of interest; however, the decision as to whether a conflict of interest is presented by the receipt of a gift is determined on a case-by- case basis. Addressing the specific question raised, Section 1103(a) of the Ethics Act (conflicts of interests), would not be applicable to the , as factually presented within the advisory opinion request, there is no use of office or confidential information by \[SUPERVISOR 1\]. As such, Section 1103(a) would not impose any prohibitions upon \[SUPERVISOR 1\] contemplated actions as a public official. As to Sections 1103(b)/(c) of the Ethics Act (seeking improper influence/accepting improper influence \[SUPERVISOR 1\] and \[MANAGER\] regarding the giving/receipt of the gift and official action. There is concern as to dynamics of the relationship between the individuals and the appearance it conveys. \[SUPERVISOR 1\] is the employment superior of \[MANAGER\] and proposes to provide a gift to the employment superior of his spouse \[TOWNSIP EMPLOYEE\]. However, the mere appearance of impropriety will not suffice to establish a conflict of interest under the most recent version of the Ethics Act (Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq. See Toft, 06-530. The foregoing is noted not to imply any improper influence has been offered or accepted but rather to provide a complete response to the request for an advisory opinion. The Ethics Act is a public trust and that any effort to realize personal financial gain Confidential, 21-543 August 19, 2021 Page 5 Pa.C.S. §1101.1 Furthermore, by enacting the Ethics Act, the General Assembly declar order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the Id. Regardless of the presumed good intentions of the gift to be conveyed, one must answer The answer will not be found in this advisory but will rather be answered by the electorate. 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. Not addressed within this advice is to what extent, if any, the Internal Revenue Code and the Pennsylvania Second Class Township Code may be applicable. Conclusion: As a Township Supervisor, \[SUPERVISOR 1\] wnship Manager, \[MANAGER\] both are therefore subject to the provisions of the Ethics Act. There is no per se - strings- Any gift received valued in the aggregate of $250.00 or more must be reported on Statement of Financial Interests filed for the years the gift was made/received. No person shall offer or give to a public official/public employee (nor shall a public official/employee accept) anything of monetary value, including a gift, based on the offerors understanding that the official action or judgment of the public official/employee will be influenced thereby. 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 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. Confidential, 21-543 August 19, 2021 Page 6 Respectfully, Brian D. Jacisin Chief Counsel