Loading...
HomeMy WebLinkAbout24-556 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: 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 August 26, 2024 24-556 This responds to your letters dated July 23, 2024, and August 1, 2024, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issues presented below: Issues: (1) Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec ., would impose prohibitions or restrictions upon either of two individuals serving as township supervisors, one of whom ("Individual One") is the [Position] and [Officer] of one fire company ("Fire Company One") and one of whom ("Individual Two") is a member of another fire company ("Fire Company Two") and its [Unit], with regard to voting on [a Matter That Would Financially Impact] Fire Company One and Fire Company Two. Brief Answer: Fire Company One is a business with which Individual One is associated in his capacity as an officer. As such, 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 that would financially impact him or Fire Company One. Individual One specifically would have a conflict of interest with regard to voting on [a Matter That Would Financially Impact] Fire Company One and Fire Company Two unless the class/subclass exclusion would be applicable as to any impact upon Fire Company One. i Fire Company Two would not be considered a business with which Individual Two is associated for purposes of the Ethics Act because he is not a director, officer, owner, employee, or holder of a financial interest in Fire Company Two. Therefore, unless there 1 Pursuant to the definition of "conflict" or "conflict of interest" set forth in Section 1102 of the Ethics Act, action that 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, does not constitute a conflict of interest. Confidential Advice, 24-556 August 26, 2024 Page 2 would be a 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, Individual Two would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on [a Matter That Would Financially Impact] Fire Company One and Fire Company Two. (2) Whether Individual One or Individual Two would have a conflict of interest with regard to voting on [a Matter That Would Financially Benefit] ambulance services with which Fire Company One and Fire Company Two occasionally work. Brief Answer: There is no basis in the submitted facts to conclude that [Taking Action on a Matter That Would Financially Benefit] ambulance services would result in a private pecuniary benefit to Individual One, Individual Two, any of their immediate family members, or a business with which Individual One, Individual Two, or an immediate family member is associated. Therefore, based upon the submitted facts, neither Individual One nor Individual Two would have a conflict of interest with regard to voting on [a Matter That Would Financially Benefit] ambulance services with which Fire Company One and Fire Company Two occasionally work. Facts: You have been authorized by [Individual One] and [Individual Two] to request a confidential advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. [Individual One] and [Individual Two] are Members of the Board of Supervisors of [the Township], located in [County], Pennsylvania. [Individual One] serves as [Officer] of the Township Board of Supervisors, which is composed of three Members. The Township is served by two volunteer fire companies, [Fire Company One] and [Fire Company Two]. [Individual One] is the [Position] and [Officer] of [Fire Company One]. [Individual Two] is a member of [Fire Company Two] and its [Unit]. [Individual One] and [Individual Two] do not receive any compensation for their volunteer work with the fire companies. The Township Board of Supervisors is considering [Taking Action on a Matter That Would Financially Impact] [Fire Company One] and [Fire Company Two]. The Township Board of Supervisors is also considering [Taking Action on a Matter That Would Financially Benefit] ambulance services with which [Fire Company One] and [Fire Company Two] occasionally work. Based upon the above submitted facts, you seek guidance as to whether [Individual One] or [Individual Two] would have a conflict of interest with regard to voting on: (1) [a Matter That Would Financially Impact] [Fire Company One] and [Fire Company Two]; or (2) [Taking Action on a Matter That Would Financially Benefit] ambulance services. You further seek guidance as to what procedures for voting would be permitted where both [Individual One] and [Individual Two] would have a conflict of interest with regard to voting on a matter. Confidential Advice, 24-556 August 26, 2024 Page 3 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 (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: Confidential Advice, 24-556 August 26, 2024 Page 4 § 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. "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 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. Confidential Advice, 24-556 August 26, 2024 Page 5 A conflict of interest would not exist to the extent the "class/subclass" exclusion set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest" would be applicable. 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" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Township Supervisors, [Individual One] and [Individual Two] are public officials subject to the provisions of the Ethics Act. [Individual One] and [Individual Two] 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. With respect to [Individual One], [Fire Company One] is a business with which he is associated in his capacity as an officer (i.e., [Officer]). Pursuant to Section 1103(a) of the Ethics Act, [Individual One] would have a conflict of interest with regard to voting on [a Matter That Would Financially Impact] [Fire Company One] and [Fire Company Two] unless the class/subclass exclusion would be applicable as to any impact upon [Fire Company One]. With respect to [Individual Two], [Fire Company Two] 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 [Fire Company Two]. Therefore, unless there would be a 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, [Individual Two] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on [a Matter That Would Financially Impact] [Fire Company One] and [Fire Company Two]. With respect to the potential [Action by the Township That Would Financially Benefit Ambulance Services], there is no basis in the submitted facts to conclude that [Such Action] would result in a private pecuniary benefit: (1) to [Individual One], a member of his immediate family, or a business with which [Individual One] or a member of his immediate family is associated (such as [Fire Company One]), or: (2) to [Individual Two], a member of his immediate family, or a Confidential Advice, 24-556 August 26, 2024 Page 6 business with which [Individual Two] or a member of his immediate family is associated. Therefore, based upon the submitted facts, neither [Individual One] nor [Individual Two] would have a conflict of interest with regard to voting on [a Matter That Would Financially Benefit] ambulance services with which [Fire Company One] and [Fire Company Two] occasionally work. In each instance of a conflict of interest, the Township Supervisor with the conflict (i.e., [Individual One] or [Individual Two]) 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. The two voting conflict exceptions contained in Section 11030) of the Ethics Act are strictly limited to voting and do not authorize an individual with a conflict to make a motion to put the matter in a posture for a vote. When two members on a three -member board would have conflicts of interest, only the non -conflicted member could make a motion. Since the non -conflicted member could not second his own motion and it would be otherwise impossible to obtain a second to the motion, a conflicted member, having previously abstained and disclosed his conflict, could then second the motion if he would so choose. A conflicted member could not discuss or advocate as to the motion. A conflicted member could only vote on the motion. Cf., Confidential Opinion 04-003. Therefore, where both [Individual One] and [Individual Two] would have a conflict of interest with regard to voting on a matter, only the third, non -conflicted Member of the Township Board of Supervisors could make a motion. If such a motion would not be made, there would be no opportunity for a motion to be seconded. If such a motion would be made, either [Individual One] or [Individual Two], having previously abstained and disclosed the conflict, could then second the motion if he would so choose. [Individual One] and [Individual Two] could not discuss or advocate as to the motion, they could only vote on the motion. Cf., Confidential Opinion, 04- 003. 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 Confidential Advice, 24-556 August 26, 2024 Page 7 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