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HomeMy WebLinkAbout04-517 TobinDiane Tobin 7 Maple Avenue Pine Grove, PA 17963 Dear Ms. Tobin: ADVICE OF COUNSEL March 3, 2004 04 -517 Re: Conflict; Public Official /Employee; Township; Supervisor; Landfill; Immediate Family; Spouse's Aunt. This responds to your letter of January 30, 2004, 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 as to voting on landfill expansion issues when the supervisor's spouse's aunt lives on adjacent property to the landfill, and the adjacent property will not be affected by or be involved in the landfill expansion. Facts: As a member of the Board of Supervisors of Pine Grove Township ownship"), you request an advisory from the State Ethics Commission based upon the following submitted facts. At the present time, issues involving the expansion of a landfill are being considered by the Township. Your spouse s aunt lives on adjacent property to the landfill. Your spouse's aunt was married to your spouse's late uncle who was your father -in -law's brother. You state that the expansion issues do not include or involve land owned by your spouse's aunt. The first question you pose is whether you would have a conflict of interest as to voting on landfill expansion issues. The second question you pose is whether two other Township Supervisors would have a conflict of interest as to landfill issues when they were formerly members of a local citizens group which is fighting the expansion of the landfill and fighting to close the facility or when members of their immediate family are presently members of that local citizens group. You state that the local citizens group has recently threatened the Township with possible litigation. Tobin, 04 -517 March 3, 2004 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 liave 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, 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. Tobin, 04 -517 March 3, 2004 Page 3 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. In response to your first question, the term "immediate family" as defined in the Ethics Act includes a parent, child, spouse, brother, or sister. A spouse's aunt is not included within the definition of "immediate family." Therefore, absent a use of authority of office by you for a private pecuniary benefit of yourself, a member or your immediate family, or a business with which ou or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you from participating on landfill expansion issues. Tobin, 04 -517 March 3, 2004 Page 4 The second question which you have posed regarding the two other Township Supervisors may not be addressed because those individuals have not specifically given you their permission to submit your inquiry on their behalf and thus, you are considered a third party without legal standing. However, it is suggested that you review DeLano, Opinion 88 -008 for general informational purposes only. 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 of Pine Grove Township (" 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. In response to your question as to whether you would have a conflict of interest as to participating on landfill expansion issues when your spouse's aunt lives on adjacent property to the landfill, you are advised that a spouse's aunt is not included within the definition of "immediate family." Therefore, absent a use of authority of office by you for a private pecuniary benefit of yourself, a member or your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you from participating on landfill expansion issues. 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