HomeMy WebLinkAbout03-502 TetiNicholas A. Teti
Supervisor, Whitpain Township
875 Cathcart Road
Blue Bell, PA 19422
Dear Mr. Teti:
ADVICE OF COUNSEL
January 10, 2003
03 -502
Re: Conflict; Public Official /Employee; Township Supervisor; Treasurer; Member;
Comprehensive Plan Committee; Immediate Family; Son; Township Employee;
Across The Board Salary Increase For All Township Employees; Budget;
Class /Subclass Exclusion; Vote.
This responds to your letter received on December 10, 2002, by which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a township
supervisor /township secretary as to participating on the budget process when his son is
a township employee and the budget contains an across the board salary increase for
all township employees, including his son.
Facts: You are a Member of the Board of Supervisors and Treasurer of Whitpain
Township, Montgomery County, a township of the second class. As a Supervisor, you
are responsible for voting on all management and budget decisions. You also serve as
a Member of the Comprehensive Plan Committee, which is presently updating and
revising the Township Comprehensive Plan.
You state that your son is employed by the Township Public Works Sewer
Department in a non - supervisory position. On December 17, 2002, the Board must vote
on the budget, which contains an across the board raise of 4% for all Township
employees, including your son.
You ask to what extent you may participate in the budget process.
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
Teti 03 -502
January 10, 2003
Page 2
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 Member of the Board of Supervisors and Treasurer of Whitpain Township,
you are a public official as that term is defined in the Ethics Act, and hence you are
subject to the provisions of that 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.
"Immediate family." A parent, spouse, child, brother
or sister.
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.
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January 10, 2003
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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
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.
Since the term "immediate family" is defined to include a parent, spouse, child,
brother or sister and since your son is in one of the familial relationships delineated
above, he is a member of your immediate family. Generally, you, as a Township
Supervisor/Treasurer, would have a conflict of interest in matters that would financially
impact yourself or your son. In each instance of a conflict, you would be required to
abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act. The requirement for abstention in the event of a conflict would extend not only to
voting, but also to other uses of authority of office, such as discussing, conferring with
others, or lobbying for a particular result. See, Juliante, supra.
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January 10, 2003
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Having established the above general principles, your specific inquiry shall now
be addressed.
If your actions with respect to the budget process would financially impact upon
your son, you would have a conflict of interest and would be required to abstain and
observe the disclosure requirements of Section 1103(j) of the Ethics Act unless the de
minimis exclusion or the class /subclass exclusion contained within the definition of
"conflict" or "conflict of interest" would apply.
The de minimis exclusion recludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact.
As for the class /subclass exclusion, in order for the exclusion to apply, two
criteria must be met: (1) the affected public official /public employee, immediate family
member, or business with which the public official /public employee or immediate family
member is associated must be a member of a class consisting of the general ublic or a
true subclass consisting of more than one member; and (2) the public official /public
employee, immediate family member, or business with which the public official /public
employee or immediate family member is associated must be affected "to the same
degree" On no way differently) than the other members of the class /subclass. 65
Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017);
Rubenstein, Opinion 01 -007. The first criterion is satisfied where the members of the
proposed subclass are similarly situated as the result of relevant shared characteristics.
Kablack, Opinion 02 -003. The second criterion is satisfied where the
individual /business in question and the other members of the class /subclass are
reasonably affected to the same degree by the proposed action. Id. A proper analysis
of the applicability of the class /subclass exclusion in any given instance requires a
careful examination of the circumstances, on a case -by -case basis.
In considering the instant matter, you are advised that portions of the budget or
budget process pertaining to the Public Works Sewer Department generally would not
present a conflict of interest for you absent some private pecuniary benefit to your son.
If the funding for your son's salary would be a separate line item on the budget,
you would have a conflict as to that particular line item. However, if the funding for your
son's salary would be included within a line item for a class /subclass and your son and
the other members of the class /subclass would receive the same financial benefits
thereby, you would not have a conflict as to that line item and could participate and vote
on it. See, Mattie, Advice 91 -508, addressing similar questions in the context of
contract negotiations and the budget process.
Based upon your statement that the budget contains an across the board raise of
4% for all township employees, including your son, it would appear that your son would
belong to a subclass of township employees consisting of more than one person and be
affected to the same degree. Under these circumstances, you would not have a conflict
of interest and would be permitted to participate in the budget process.
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 Member of the Board of Supervisors and Treasurer of
Whitpain I ownship, you are a public official subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your son is a
member of your immediate family. Generally, you, as a Township
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January 10, 2003
Page 5
Supervisor/Treasurer, would have a conflict of interest in matters that would financially
impact yourself or your son. In each instance of a conflict, you would be required to
abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act. Portions of the budget or budget process pertaining to the Public Works Sewer
Department generally would not present a conflict of interest for you absent some
private pecuniary benefit to your son. If the funding for your son's salary would be a
separate line item on the budget, you would have a conflict as to that particular line
item. However, if the funding for your son's salary would be included within a line item
for a class /subclass and your son and the other members of the class /subclass would
receive the same financial benefits thereby, you would not have a conflict as to that line
item and could participate and vote on it. Based upon your statement that the budget
contains an across the board raise of 4% for all township employees, including your
son, it would appear that your son would belong to a subclass of township employees
consisting of more than one person and be affected to the same degree. Under these
circumstances, you would not have a conflict of interest and would be permitted to
participate in the budget process. 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
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