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HomeMy WebLinkAbout04-564 FeickChristopher J. Hartman, Esquire Hartman, Hartman, Howe & Allerton 2901 St. Lawrence Avenue P.O. Box 4429 Reading, PA 19606 Dear Mr. Hartman: ADVICE OF COUNSEL June 17, 2004 04 -564 Re: Conflict; Public Official /Employee; Township Supervisor; Use of Personal Vehicle Owned by Supervisor; Repair Costs; Potential Liability; Voting Conflict Exception. This responds to your letters of May 3, 2004, May 14, 2004, and June 17, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., two township supervisors serving on a three - member board may participate in official action as to a request by one of them that the township pay for a transmission repair to his personal vehicle, when the vehicle broke down while being utilized by the other supervisor for township plowing without prior authorization by the board of supervisors. Facts: As Solicitor for Tulpehocken Township ("Township"), you request an advisory on behalf of Supervisor Lester H. Feick ('Feick ") and Supervisor Dale K. Swope ( "Swope "). You have submitted facts, the pertinent portions of which may be summarized as follows. The Township Board of Supervisors ( "Board ") consists of three members, specifically, Feick, Swope, and Supervisor Ronald S. Whitmoyer ("Whitmoyer"). The Supervisors are required to vote upon all matters coming before the Board, including the approval of Township contracts and financial expenditures. Each of the Supervisors is employed by the Township to plow snow on an as- needed basis. In January 2004, Swope was plowing snow with the Township's one -ton truck when the truck developed a problem with its alternator. Unable to continue plowing, Swope brought the Township truck back to the municipal building and reported to Feick that the truck was in need of repair. Feick offered Swope the use of his own personal truck so that Swope could continue plowing snow for the Township. Swope accepted Feick's offer and used Feick's personal truck to plow snow for the Township. There was no official action by the Board to contract with Feick for the use of his personal truck for snow plowing purposes. Hartman /Feick/Swope 04 -564 June 17, 2004 Page 2 After approximately two (2) hours of snow plowing, Feick's truck began to show signs of mechanical problems. Swope took the truck to Swope's private business garage in the Township, where he determined that the truck's transmission was broken. The Feick truck transmission was sent to Beissel Automotive to be rebuilt. The rebuilt transmission was then re- installed in Feick's truck. You state that the cost to repair the transmission was $1,245.48. You have submitted a copy of Beissel Automotive Invoice No. 56261 in that amount, which document is incorporated herein by reference. After paraphrasing Sections 1103(a ) and 1103(j) of the Ethics Act, you opine that Feick would have a conflict of interest as to the proposed payment by the Township of the cost of repairs to his personal vehicle. However, you further opine that Swope may also have a conflict because he was operating the vehicle at the time it broke down. You state, "If Tulpehocken Township does not pay for the repair of Mr. Feick's vehicle, Mr. Feick may, hypothetically, seek contribution from Mr. Swope for the costs of the repair." (Hartman letter of June 17, 2004). Noting the voting conflict exception in Section 1103(j) of the Ethics Act that applies when the number of members required to abstain from voting due to a conflict under the Ethics Act makes the majority or other legally required vote of approval unattainable, you ask the following specific questions: (1) May the Township pay the costs of the transmission repair for Feick's truck? (2) Which of the supervisors may vote on the matter of the Township paying the costs of the transmission repair for Feick's truck? 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. As Township Supervisors, Feick and Swope are "public officials" subject to the provisions of the Ethics 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). Hartman /Feick/Swope 04 -564 June 17, 2004 Page 3 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. 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. 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 Hartman /Feick/Swope 04 -564 June 17, 2004 Page 4 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). Subject to the voting conflict exceptions set forth therein, Section 1103(j) requires a public official /public employee with a conflict 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. Having set forth the applicable provisions of the Ethics Act, your specific questions shall now be considered. Your first question regarding whether the Township may pay for the cost of the repairs to Feick's truck would appear to fall under the Second Class Township Code. It does not fall within the scope of the Ethics Act or the jurisdiction of the State Ethics Commission, and therefore it cannot be addressed within the context of this advisory. Your second question may be addressed as to Feick and Swope, who have authorized your inquiry. You have asked whether these two Supervisors may vote on the matter of the Township paying the costs of the transmission repair for Feick's truck. You are advised that Feick would have a conflict of interest in the matter of his request that the Township pay the costs of a transmission repair for his personal truck, which truck was used for Township plowing without prior authorization by the Board. As for Swope, the State Ethics Commission does not have the jurisdiction to make a determination as to whether Swope could be held personally liable for the repair to Feick's truck. You are therefore advised that if and to the extent Swope, who was driving Feick's truck at the time it broke down, could be held personally liable for the repair to Feick's truck, Swope would also have a conflict of interest in the matter of Feick's request that the Township pay for the repair. Given the necessarily qualified response as to Swope, this Advice may only provide general guidance as to the voting conflicts exception of Section 1103(j) that you have referenced That particular voting conflicts exception provides that in the event that the required abstention of public officials with conflicts under the Ethics Act results in the inability of the governmental body to take action because a majority or other legally required vote of approval is unattainable, then voting is permissible provided the disclosure requirements noted above are followed. 65 Pa.C.S. § 1103(j). See, Pavlovic, Opinion 02 -005. Section 1103(1) does not give conflicted officials the authority to otherwise participate, as for example, discussing or advocating as to the issue. Id. The State Ethics Commission has recently reviewed this particular voting conflicts exception in the context of a three - member board. Confidential Opinion, 04- 003. The Commission has determined that when two members on a three - member board have conflicts, the non - conflicted member may choose to make or not make a motion. The two conflicted members may not make the motion. Given that the non - conflicted member may not second his /her own motion, and that it would be otherwise impossible for a second to occur, either of the two conflicted members, if he or she so chooses, may second the motion. The two conflicted members may not discuss or advocate as to the motion following the second. The two conflicted members may only vote on the motion. Id. 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 Hartman /Feick/Swope 04 -564 June 17, 2004 Page 5 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 Supervisors for Tulpehocken Township ( "Township "), Lester H. Feick ( "Feick ") and Dale K. Swope ( "Swope") are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Feick would have a conflict of interest in the matter of his request that the Township pay the costs of a transmission repair for Feick's truck, which truck was used for Township plowing without prior authorization by the Township Board of Supervisors ( "Board "). If and to the extent Swope, who was driving Feick's truck at the time it broke down, could be held personally liable for the repair to Feick's truck, Swope would also have a conflict of interest in the matter of Feick's request that the Township pay for the repair. Section 1103(1) of the Ethics Act provides that in the event that the required abstention of public officials with conflicts under the Ethics Act results in the inability of the governmental body to take action because a majority or other legally required vote of approval is unattainable, then (otinq is permissible provided the disclosure requirements noted in Section 11030) are followed. Section 1103(j) does not give conflicted officials the authority to otherwise participate as to the issue. When two members on a three - member board have conflicts, the non - conflicted member may choose to make or not make a motion. The two conflicted members may not make the motion. Either of the two conflicted members, if he or she so chooses, may second the motion. The two conflicted members may not discuss or advocate as to the motion following the second. The two conflicted members may only vote on the motion. 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