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HomeMy WebLinkAbout03-610 WhitselW. Lee Oswalt, III, Esquire Goldstein, Heslop, Steele, Clapper, Oswalt and Stoehr 414 N. Logan Boulevard Altoona, PA 16602 -1749 ADVICE OF COUNSEL December 18, 2003 03 -610 Re: Conflict; Public Official /Employee; Immediate Family; Supervisor; Township; Daughter -in -law; Joint Bank Account. Dear Mr. Oswalt: This responds to your letter of November 11, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to voting on personnel issues involving his daughter -in -law's employment as the Township Secretary. Facts: As Solicitor for Cromwell Township ( "Township "), you seek an advisory on behalt of Theodore Whitsel ( "Whitsel "), a member of the Township Board of Supervisors. You have submitted facts, the pertinent portions of which may be summarized as follows. Whitsel's daughter -in -law is the Township Secretary. You state that there are various instances when matters concerning Whitsel's daughter -in -law will come before the Board of Supervisors including, but not limited to, personnel issues concerning her salary increases or decreases, health benefits and other employment related benefits. You surmise that any money paid by the Township to Whitsel's daughter -in -law as Township Secretary will be deposited into a joint bank account owned by Whitsel's daughter -in -law and her spouse, Whitsel's son. You state that an argument could possibly be made that a private pecuniary benefit would inure to Whitsel's son, an immediate family member, by virtue of the joint bank account, and therefore, Whitsel would have a conflict of interest as to voting on various personnel issues involving his daughter -in -law's employment as Township Secretary. Given the above facts, you ask whether Whitsel would have a conflict of interest as to voting on personnel issues involving his daughter -in -law, the Township Secretary. Oswalt/Whitsel, 03 -610 December 18, 2003 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and (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, Whitsel is a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence Whitsel is 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 that pertain 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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: Oswalt/Whitsel, 03 -610 December 18, 2003 Page 3 §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 -5. In applying the above provisions of the Ethics Act to the circumstances which you have submitted, 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 a daughter -in -law is not in a familial relationship delineated above, Section 1103(a ) of the Ethics Act would not prohibit Whitsel from participating on various personnel matters involving his daughter -in -law's employment as the Township Secretary. Baker, Opinion 89 -016. The fact that Whitsel's daughter -in -law might deposit payments into a joint bank account would not affect the foregoing conclusion. See, Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Commw. 1998), appeal denied, 557 Pa. 642, 742 A.2d 1211 (1998). (Wherein the Commonwealth Court reversed an order of the State Ethics Commission which found a violation of Section 3(a) where the public official used the authority of office to create a new employment position and to appoint his son -in -law to same. The Commission found that the son -in -law's salary Oswalt/Whitsel, 03 -610 December 18, 2003 Page 4 increase resulted in a direct private pecuniary benefit to the public official's daughter — who was a member of his immediate family — through the deposit of such monies in a joint account where they were used to satisfy joint obligations for which the daughter was legally liable). Lastly, 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 Cromwell Township Supervisor, Theodore Whitsel ( "Whitsel ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ('Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(a ) of the Ethics Act would not restrict Whitsel from participating on various personnel matters involving his daughter -in -law's employment as the Township Secretary because his daughter -in -law is not a member of Whitsel's immediate family as that term is defined under the Ethics Act. 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