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HomeMy WebLinkAbout04-525 MeansCharles M. Means, Esquire Campbell, Durrant & Beatty, P.C. 555 Grant Street, Suite 310 Pittsburgh, PA 15219 -4408 Dear Mr. Means: ADVICE OF COUNSEL March 29, 2004 04 -525 Re: Conflict; Public Official /Employee; Township; Commissioner; Immediate Family; Son; Police Officer; Police Pension Plan Committee; Exclusion; Class /Subclass. This responds to your letter of February 25, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a township commissioner whose son is a township police officer and participant in the township's police pension fund, with regard to: (1) serving on the townships police pension fund committee; (2) participating as a member of the pension fund committee in matters involving the general management of the pension fund; or (3) participating as a member of the pension fund committee in matters regarding pension benefits due specifically to the township commissioner's son. Facts: As Solicitor for Collier Township ( "Township "), a township of the First you request an advisory from the State Ethics Commission on behalf of the President of the Township Board of Commissioners, Sandra Lamb ( "Lamb "). You note that Act 600 provides that each township in the Commonwealth having a police force of three or more full -time members must establish a police pension fund, with such fund being under the direction of the governing body of the township under such regulations as the governing body may prescribe. 53 P.S. §§ 767(a) (1), (2). You have submitted a copy of the Collier Township Police Retirement Ordinance Ordinance "), which document is incorporated herein by reference. The Township's Pension Fund is under the direct control of the Township Commissioners. Ordinance, Section 616. However, the Pension Fund is managed by a Pension Fund Committee, which is comprised of the President of the Township Board of Commissioners, Township Secretary, Township Treasurer, one full -time police officer appointed annually by the members of the police force participating in the Pension Fund, and one other person appointed by the Board of Commissioners annually. Id. Means /Lamb, 04 -525 March 29, 2004 Page 2 Currently, the Township's police force consists of 10 full -time police officers, including Lamb's son, Richard Lamb. All 10 police officers participate in the Pension Fund. Based upon the foregoing facts, you pose the following specific inquiries: (1) Whether it would be a conflict of interest under the Ethics Act for Lamb to serve on the Pension Fund Committee; (2) Whether Lamb would have a conflict of interest under the Ethics Act with regard to deliberating and voting as a member of the Pension Fund Committee on matters involving the general management of the Pension Fund; and (3) Whether Lamb would have a conflict of interest under the Ethics Act with regard to deliberating and voting as a member of the Pension Fund Committee on matters regarding pension benefits due specifically to Lamb's son. You contend that because Lamb would serve on the Pension Fund Committee as a result of designation under the Township Ordinance, there would be no private pecuniary benefit establishing a conflict of interest. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a member and President of the Township Board of Commissioners, Lamb is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide as follows: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Means /Lamb, 04 -525 March 29, 2004 Page 3 65 Pa.C.S. The as follows: 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. §§ 1103(a), (j). following terms pertaining to conflict of interest are defined in the Ethics Act § 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(a) of the Ethics Act prohibits a public official /public employee 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. Means /Lamb, 04 -525 March 29, 2004 Page 4 In each instance of a conflict, Section 11030) requires the public official /public 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. The requirement for abstention in the event of a conflict extends 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, Order 809. 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, Pavlovic, Opinion 02 -005. Having set forth the relevant provisions of the Ethics Act, your specific inquiry shall now be addressed. Lamb's son is a member of Lamb's "immediate family" as that term is defined in the Ethics Act. Therefore, pursuant to Section 1103(a) of the Ethics Act, Lamb would generally have a conflict of interest in her capacity as a public official in matters that would financially benefit Lamb or her son. In each instance of a conflict of interest, Lamb would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act set forth above. Lamb's prospective status as a member of the Pension Fund Committee, in and of itself, would not constitute a conflict of interest for Lamb. However, contrary to your assertion, the fact that the Township's Ordinance would designate Lamb, as President of the Township Board of Commissioners, to serve as a member of the Pension Fund Committee, would not insulate Lamb from a finding of a conflict of interest. As to actions taken by Lamb, a conflict of interest would exist if: (1) the requisite elements of a conflict, as set forth in the definition of "conflict" or "conflict of interest," would exist; and (2) neither the "de minimis" exclusion nor the "class /subclass exclusion" contained within the definition of "conflict" or "conflict of interest" would apply. The element of use of authority of office could be established as the result of actions taken by Lamb as a Township Commissioner or as a member of the Pension Fund Committee. The element of a private pecuniary benefit could be established by a financial benefit to Lamb's son. If Lamb's action with respect to the general management of the pension fund would financially impact her son, Lamb would have a conflict of interest under Section 1103(a) of the Ethics Act unless the aforesaid de minimis exclusion or class /subclass exclusion would apply. The de minimis exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. See, Schweinsburq, Order 900. In order for the class /subclass 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 public 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, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the Means /Lamb, 04 -525 March 29, 2004 Page 5 individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. n considering the first criterion, it would appear that there is at least one potential class /subclass, consisting of the 10 full -time police officers employed by the Township who participate in the Pension Fund. n considering the second criterion, the submitted facts do not disclose whether Lamb's actions with respect to the general management of the Pension Fund would affect her son to the same degree as other members of a class /subclass. When a factual insufficiency exists as to the impact of proposed action on members of a class /subclass, the advisory must necessarily be limited to providing general guidance. Finally, you are advised that Lamb generally would have a conflict of interest under Section 1103(a) of the Ethics Act as to matters regarding pension benefits due specifically to her son, because generally, the elements of a conflict of interest would exist and the de minimis exclusion and class /subclass exclusion would not apply. he 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. Conclusion: As a member and President of the Collier Township ("Township") Board of Commissioners, Sandra Lamb ( "Lamb ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ('Ethics Act "), 65 Pa.C.S. § 1101 et seq. Lamb's son, who is a Township police officer and participant in the Towns Police Pension Fund, is a member of Lamb's "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Lamb's prospective status as a member of the Township's Pension Fund Committee, in and of itself, would not constitute a conflict of interest for Lamb. As to actions taken by Lamb, a conflict of interest would exist if: (1) the requisite elements of a conflict, as set forth in the definition of "conflict" or "conflict of interest," would exist; and (2) neither the "de minimis" exclusion nor the "class /subclass exclusion" contained within the definition of "conflict" or "conflict of interest" would apply. If Lamb's action with respect to the general management of the pension fund would financial) impact her son, Lamb would have a conflict of interest under Section 1103(a) of the Ethics Act unless the aforesaid de minimis exclusion or class /subclass exclusion would apply. Lamb generally would have a conflict of interest under Section 1103(a) of the Ethics Act as to matters regarding pension benefits due specifically to her son, because generally, the elements of a conflict of interest would exist and the de minimis exclusion and class /subclass exclusion would not apply. 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. Means /Lamb, 04 -525 March 29, 2004 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. Sincerely, Vincent J. Dopko Chief Counsel