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HomeMy WebLinkAbout24-534 WiestPHONE: 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 April 19, 2024 To the Requester: Joel M. Wiest, Esquire Dear Mr. Wiest: 24-534 This responds to your letters dated March 26, 2024, and April 1, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether either of two individuals serving as township supervisors would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), with regard to participating in matters involving litigation between the township and a fire company that was decertified as the township's fire service provider, where one of the individuals ("Individual One") is a member and vice president of the fire company and the other individual ("Individual Two") is a member of the fire company. Brief Answer: The fire company is a business with which Individual One is associated as an officer. The fire company would not be considered a business with which Individual Two is associated for purposes of the Ethics Act. Accordingly, Individual One generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the township board of supervisors involving the litigation between the township and the fire company. Individual Two would not have a conflict of interest in matters before the township board of supervisors involving the aforesaid litigation unless there would be some basis for a conflict of interest such as a private pecuniary (financial) benefit to Individual Two, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Wiest, 24-534 April 19, 2024 Page 2 Facts: You have been authorized by Wayne Bieber ("Mr. Bieber") and Travis Monk ("Mr. Monk") to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. Mr. Bieber and Mr. Monk are Supervisors for East Chillisquaque Township ("the Township"), located in Northumberland County, Pennsylvania. In early 2023, at a time when Mr. Monk was not yet a Member of the Township Board of Supervisors, Mr. Bieber and the other Township Supervisors voted to permanently "decertify" the Township's fire service provider, the Potts Grove Fire Company ("the Fire Company"), as a result of ongoing issues between the Township and the Fire Company. In May 2023, the Fire Company filed a complaint against the Township in the Northumberland County Court of Common Pleas in relation to the Fire Company's decertification by the Township. In June 2023, the Township filed both an answer to the complaint and a counterclaim in relation to damages to a Township building and grounds that were leased to the Fire Company and the termination of the lease between the Township and the Fire Company. In January 2024, Mr. Monk took office as a Township Supervisor. In March 2024, the Township filed a Petition for Contempt against the Fire Company relative to certain actions taken by the Fire Company. Mr. Bieber is a life member of the Fire Company. Mr. Monk is a member and Vice President of the Fire Company. Based upon the above submitted facts, you ask whether Mr. Bieber or Mr. Monk would have a conflict of interest with regard to participating in matters before the Township Board of Supervisors pertaining to the litigation between the Township and the Fire Company. To the extent that Mr. Monk would have a conflict of interest, you ask whether the conflict of interest could be avoided if Mr. Monk would resign as Vice President of the Fire Company. 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 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 material facts. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities Wiest, 24-534 April 19, 2024 Page 3 (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 vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 11030). 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. Wiest, 24-534 April 19, 2024 Page 4 "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, 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, apublic official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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 Township Supervisors, Mr. Bieber and Mr. Monk are public officials subject to the provisions of the Ethics Act. Mr. Bieber and Mr. Monk each would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Wiest, 24-534 April 19, 2024 Page 5 With respect to Mr. Bieber, the Fire Company would not be considered a business with which he is associated because under the submitted facts, he is not a director, officer, owner, employee, or holder of a financial interest in the Fire Company. Therefore, unless there would be a basis for a conflict of interest such as a private pecuniary (financial) benefit to Mr. Bieber, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Bieber would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before the Township Board of Supervisors pertaining to the litigation between the Township and the Fire Company. With respect to Mr. Monk, the Fire Company is a business with which he is associated in his capacity as an officer (i.e., Vice President). Pursuant to Section 1103(a) of the Ethics Act, Mr. Monk generally would have a conflict of interest with regard to participating in matters before the Township Board of Supervisors pertaining to the litigation between the Township and the Fire Company. If Mr. Monk would cease serving as the Vice President of the Fire Company and would serve solely as a member of the Fire Company, the Fire Company would no longer be considered a business with which Mr. Monk is associated. Under such circumstances, unless there would be a basis for a conflict of interest such as a private pecuniary (financial) benefit to Mr. Monk, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Monk would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before the Township Board of Supervisors pertaining to the litigation between the Township and the Fire Company. In each instance of a conflict of interest, the Township Supervisor with the conflict (i.e., Mr. Bieber or Mr. Monk) 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. 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 Wiest, 24-534 April 19, 2024 Page 6 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, Bridget K. Guilfoyle Chief Counsel