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HomeMy WebLinkAbout22-514 SweatPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 March 25, 2022 To the Requester: Mr. Gary L. Sweat, Esquire Dear Attorney Sweat: 22-514 This responds to your letter received March 14, 2022, and your email received March 15, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), an individual who is a newly -elected Supervisor for Union Township (Township), Washington County, Pennsylvania, would have a conflict of interest with regard to participating in settlement negotiations, deliberations, executive sessions, votes, or other actions of the Township Board of Supervisors involving two lawsuits between the Township and the Peters Creek Sanitary Authority (Authority), where prior to being elected as a Township Supervisor, the individual executed a sworn affidavit which could be adversarial to the Township's legal position in those lawsuits? Brief Answer: Unless there would be some basis for a conflict of interest such as a private pecuniary benefit for the individual, a member of the individual's immediate family, or a business with which the individual or a member of the individual's immediate family is associated, the individual would not have a conflict of interest as a Township Supervisor with regard to participating in settlement negotiations, deliberations, executive sessions, votes, or other actions of the Township Board of Supervisors involving the lawsuits between the Township and the Authority. Facts: As the Solicitor for the Township, you have been requested by Ms. Michalle Dupree (Ms. Dupree) to obtain an advisory from the Commission on her behalf. You state that Township Sweat, 22-514 March 25, 2022 Page 2 Supervisors Heather Daerr and Richard Lawson are aware of your request for an advisory from the Commission. You have submitted facts that may be fairly summarized as follows: Ms. Dupree was recently elected as a Township Supervisor, and she began serving her term on January 3, 2022. The Township Board of Supervisors consists of five Members. The Authority is a joint municipal authority organized under the Municipality Authorities Act, 53 Pa.C.S. § 5601 etseq. The Authority provides sanitary sewer service to the Township and other municipalities. The Township is entitled to appoint three Members to the Authority Board pursuant to the Authority's Articles of Incorporation and the Municipality Authorities Act. Mr. Richard Lawson (Mr. Lawson) is a Township Supervisor. Mr. Lawson was appointed to serve as one of the Township's three representatives on the Authority Board. On or about July 11, 2021, the Authority filed a lawsuit (the Authority Lawsuit) in the Washington County Court of Common Pleas to remove Mr. Lawson from the Authority Board for "just cause" and misconduct based upon allegations contained in a letter issued by the Authority Manager. An independent attorney was appointed by the Authority's insurance carrier to represent Mr. Lawson in the Authority Lawsuit. The Township subsequently filed a complaint (the Township Lawsuit) against the Authority in the Washington County Court of Common Pleas to contest the Authority's action to amend its By -Laws in a manner that would prohibit the Township from appointing a Township Supervisor or an immediate family member of a Township Supervisor to the Authority Board. The Township also requested an Order directing the Authority to adhere to its Act 537 Plan and to enter into a Sewage Service Agreement with the Township. By Order dated December 27, 2021, Judge Michael Lucas (Judge Lucas) of the Washington County Court of Common Pleas found that the Authority's amendment to its By -Laws as it pertained to the Township Supervisors' appointment power was illegal. After the parties to the Authority Lawsuit and the Township Lawsuit failed to comply with the requirements of an Order which directed them to participate in a Mandatory Conciliation Conference that was scheduled to resolve all issues raised by the litigation, Judge Lucas issued an Order dated February 24, 2022, which directs the parties to attend both a hearing to be held for the purpose of determining whether sanctions are appropriate for the parties' non-compliance and a settlement conference. Mrs. Heather Daerr (Mrs. Daerr) is a Member and Chairperson of the Township Board of Supervisors. Mrs. Daerr's husband, Kevin (Mr. Daerr), who had been appointed as a Member of the Authority Board by the Township Board of Supervisors, resigned from the Authority Board in April 2021, before any litigation had been initiated between the Authority and the Township. Mr. Daerr effectively removed himself from all litigation by his resignation from the Authority Board. Ms. Dupree is not a named party to the Authority Lawsuit or the Township Lawsuit. However, prior to being elected as a Township Supervisor, Ms. Dupree executed a sworn affidavit which was included by the Authority in its official legal filings. In her affidavit, Ms. Dupree refers to alleged actions of Township representatives on the Authority Board, including Mr. Lawson and Mr. Daerr. Ms. Dupree's affidavit could be adversarial to the Township's legal position in both the Authority Lawsuit and the Township Lawsuit, and Ms. Dupree could be called as a witness for the Authority in that litigation. You state that Ms. Dupree would not receive any type of pecuniary Sweat, 22-514 March 25, 2022 Page 3 or financial benefit with respect to any involvement with the Authority Lawsuit or the Township Lawsuit. Based upon the above submitted facts, you ask whether Mr. Lawson, Ms. Daerr, or Ms. Dupree would have a conflict of interest with regard to participating in settlement negotiations, deliberations, executive sessions, votes, or other actions of the Township Board of Supervisors involving the Authority Lawsuit or the Township Lawsuit. However, it is not clear from your submissions whether you have established standing to request an advisory as to the conduct of Mr. Lawson or Ms. Daerr. Furthermore, based upon the submitted facts, it appears that Mr. Lawson and Ms. Daerr have already had involvement as Township Supervisors with respect to the litigation between the Authority and the Township, and an advice may not be issued where conduct related to the subject matter of the advisory request has already occurred. Therefore, this advisory must be limited to addressing only Ms. Dupree's prospective conduct. 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 Sweat, 22-514 March 25, 2022 Page 4 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(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 Sweat, 22-514 March 25, 2022 Page 5 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. 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 Township Supervisor, Ms. Dupree is a public official subject to the provisions of the Ethics Act. As a public official, Ms. Dupree is restricted from using the authority of her public office for the private pecuniary (financial) benefit of herself, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Unless there would be a basis for a conflict of interest such as a private pecuniary benefit for Ms. Dupree, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Ms. Dupree would not have a conflict of interest with regard to participating in settlement negotiations, deliberations, executive sessions, votes, or other actions of the Township Board of Supervisors involving the Authority Lawsuit or the Township Lawsuit. 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. Sweat, 22-514 March 25, 2022 Page 6 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. Respectfully, rian D. Ja Chief Coun