HomeMy WebLinkAbout03-507 UnruhRoss A. Unruh, Esquire
Unruh, Turner, Burke & Frees
P.O. Box 515
17 West Gay Street
West Chester, PA 19381 -0515
ADVICE OF COUNSEL
February 12, 2003
03 -507
Re: Conflict; Public Official /Employee; Township; Supervisor; University Employee;
State System of Higher Education; Zoning; Vote.
Dear Mr. Unruh:
This responds to your faxed letter of January 10, 2003, by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a township
supervisor employed by a university within the State System of Higher Education with
regard to the university's zoning application with the township.
Facts: As Solicitor for East Bradford Township ( "Township "), you request an
advisory on behalf of one of the Township Supervisors, Dr. Thomas Egan ( "Egan "),
based upon the following submitted facts.
The Township Board of Supervisors ( "Board ") is a three - member Board. In
addition to Supervisor Egan, the Board consists of the following individuals: Dr. John
Hagens and Mr. John Jordon. Due to a physical impairment, Supervisor Jordon is
unable to attend Township meetings, and consequently, does not vote on matters
before the Township.
Supervisor Egan is employed by West Chester University ( "University "). The
University currently has a zoning application with the Township.
You pose the following question: To the extent Supervisor Egan as a University
employee would have a conflict of interest as to the University's zoning application,
would he be able to vote despite the conflict of interest, pursuant to the voting conflict
exceptions at Section 1103(j) of the Ethics Act?
Unruh 03 -507
February 12, 2003
Page 2
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 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 Pa.C.S. §§ 1107(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As a Township Supervisor, Supervisor Egan is a public official subject to the
provisions of the Ethics Act.
Section 1103(a) 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.
65 Pa.C.S. § 1103(a).
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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, 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.
Unruh 03 -507
February 12, 2003
Page 3
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(j) 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 vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. § 1103(j).
In each instance of a conflict, Section 1103(j) requires the public official/
employee to abstain and to publicly disclose the abstention and reasons for same, both
Unruh 03 -507
February 12, 2003
Page 4
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 Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, 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.
A university that is not part of the State System of Higher Education may be
considered a "business" (see, e.q., Rubenstein, Opinion 01 -007), and therefore a
business with which a publicficiaf is associated through an employment relationship.
However, in the instant matter, the University would not be considered a
business with which Supervisor Egan is associated because the University is part of the
State System of Higher Education. See, 24 P.S. § 20- 2002 -A. As part of the State
System of Higher Education, the University is governmental. See, Weiss, Opinion 85-
001; O'Hara, Opinion 89 -008. A pecuniary benefit flowing solely to a governmental
body does not form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act. See, Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso,
Order 974.
Therefore, absent any other basis for a conflict of interest (such as a private
pecuniary benefit flowing to Supervisor Egan himself), Supervisor Egan would not have
a conflict of interest under Section 1103(a) of the Ethics Act as to the University's
zoning application.
Based upon the above analysis as to the facts which you have submitted, your
inquiry regarding the voting conflict exceptions of Section 1103(j) need not be
addressed.
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 not addressed herein is the applicability of
the Second Class Township Code.
Conclusion: As a Township Supervisor for East Bradford Township
(" I ownship "), Dr. Thomas Egan is a public official subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S. § 1101 et seq. Supervisor
Egan's employer, West Chester University ("University"), would not be considered a
business with which Supervisor Egan is associated because it is part of the State
System of Higher Education. A pecuniary benefit flowing solely to the University would
not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act.
Absent any other basis for a conflict of interest (such as a private pecuniary benefit
flowing to Supervisor Egan himself), Supervisor Egan would not have a conflict of
interest under Section 1103(a) of the Ethics Act as to the University's zoning application.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
Unruh 03 -507
February 12, 2003
Page 5
conduct in any other civil or criminal proceeding, provided 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 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,
Vincent J. Dopko
Chief Counsel