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HomeMy WebLinkAbout21-546 ReedPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Ms. Irene M. Reed Dear Ms. Reed: 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 August 31, 2021 21-546 This responds to your letter received August 4, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Facts: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., you would have a conflict of interest in your capacity as a Member and Chair of the Board of Supervisors of Bern Township (Township) with regard to voting on matters involving a facility that your husband's former employer, the Penske Corporation, proposes to build in the Township? Brief Answer: NO. You would not have a conflict of interest with regard to voting on matters before the Township Board of Supervisors involving a facility that the Penske Corporation proposes to build in the Township, where the submitted facts do not indicate that the use of the authority of your office would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. You request an advisory from the Commission based upon the following submitted facts: You have served as a Township Supervisor for almost eighteen years, and you are currently Chair of the Township Board of Supervisors. The Penske Corporation proposes to build a facility in the Township, and plans for the facility were recently presented to the Township Planning Commission. Reed, 21-546 August 31, 2021 Page 2 Your husband worked for the Penske Corporation fifteen years ago, and he contributed to a 401(k) plan while he worked there. Your husband does not have a pension with the Penske Corporation. You ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to voting on matters involving the facility that the Penske Corporation proposes to build in the Township. 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 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 Reed, 21-546 August 31, 2021 Page 3 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. "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. 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Reed, 21-546 August 31, 2021 Page 4 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows: As a Member and Chair of the Township Board of Supervisors, you are a public official subject to the provisions of the Ethics Act. As a public official, you are restricted from using the authority of your public office for the private pecuniary (financial) benefit of yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Your husband is a member of your "immediate family" as that term is defined in the Ethics Act. The Penske Corporation is not a business with which your husband is associated because he is not currently a director, officer, employee, or holder of a financial interest in the Penske Corporation. You are advised that you would not have a conflict of interest with regard to voting on matters before the Township Board of Supervisors involving the facility that the Penske Corporation proposes to build in the Township, as the submitted facts do not indicate that the use of the authority of your office would financially impact you, a member of your immediate family, or a 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 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. Reed, 21-546 August 31, 2021 Page 5 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. Sincerely, rian D. Ja isi Chief Coun