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HomeMy WebLinkAbout04-588 DowneyJames A. Downey, III, Esquire Begley, Carlin & Mandio, LLP 680 Middletown Boulevard P.O. Box 308 Langhorne, PA 19047 -0308 Dear Mr. Downey: ADVICE OF COUNSEL August 24, 2004 04 -588 Re: Conflict; Public Official; Township; Supervisor; Auditor; Service on Committee to Raise Funds to Benefit Local Police and Volunteer Fire Companies. This responds to your letter of July 27, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor or a township auditor with regard to serving on a committee that will manage and run an annual fund raising dinner to benefit the local police and volunteer fire companies, and receiving donations made payable to the committee. Facts: As Solicitor for Middletown Township ( "Township "), Bucks County, Pennsylvania, you seek an advisory on behalf of Township Supervisor Lisa M. Pflaumer ( "Pflaumer ") and Township Auditor Georgianna Ramella ( "Ramella "). You have submitted facts that may be fairly summarized as follows. Pflaumer and Ramella serve on a committee that will manage and run the "Second Annual Fund Raising Dinner" to benefit the local police and volunteer fire companies. The dinner will be held on September 10, 2004. You state that any donations made to the committee will be used solely for the benefit of the dinner; any funds collected in excess of the dinner will be turned over to the police and fire companies. Funds will be sent to Pflaumer and Ramella made payable to the Committee. You state that neither Pflaumer nor Ramella will receive any benefit, pecuniary or otherwise. You further state that neither Pflaumer nor Ramella nor any member of their immediate families is involved in any business that will receive any pecuniary benefit by Downey /Pflaumer /Ramella, 04 -588 August 24, 2004 Page 2 reason of the dinner. Finally, you note that neither Pflaumer nor Ramella will receive any fee for their efforts relative to the dinner. Based upon the foregoing facts, you ask whether Pflaumer or Ramella would transgress the Ethics Act by fulfilling their duties as members of the committee to manage the Second Annual Fund Raising Dinner. 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. Township Supervisor Pflaumer and Township Auditor Ramella 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). The following terms pertaining to conflicts of interest 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. Downey /Pflaumer /Ramella, 04 -588 August 24, 2004 Page 3 "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. 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 addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/ public 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(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and public process be observed as to the contract with the governmental body and that the public official /public employee not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Downey /Pflaumer /Ramella, 04 -588 August 24, 2004 Page 4 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 /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. 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. In applying the above provisions of the Ethics Act to the facts that you have submitted, you are advised that in the absence of: (1) any use of authority of office by Pflaumer or Ramella for a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act; (2) any improper influence contrary to Section 1103(b) or Section 1103(c) of the Ethics Act; or (3) any improper contracting /subcontracting contrary to Section 1103(f) of the Ethics Act, the submitted facts do not reveal any basis for concluding that Pflaumer or Ramella would run afoul of the Ethics Act with regard to serving on the committee to manage and run the Second Annual Fund Raising Dinner to benefit the local police and volunteer fire companies, and specifically, receiving donations made payable to the committee. 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. Downey /Pflaumer /Ramella, 04 -588 August 24, 2004 Page 5 Conclusion: As a Supervisor for Middletown Township ( "Township "), Bucks County, Pennsylvania, Lisa M. Pflaumer ( "Pflaumer ") 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. As a Township Auditor, Georgianna Ramella ( "Ramella ") is also a public official subject to the Ethics Act. In the absence of: (1) any use of authority of office by Pflaumer or Ramella for a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act; (2) any improper influence contrary to Section 1103(b) or Section 1103(c) of the Ethics Act; or (3) any improper contracting /subcontracting contrary to Section 1103(f) of the Ethics Act, the submitted facts do not reveal any basis for concluding that Pflaumer or Ramella would run afoul of the Ethics Act with regard to serving on the committee to manage and run the Second Annual Fund Raising Dinner to benefit the local police and volunteer fire companies, and specifically, receiving donations made payable to the committee. 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