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HomeMy WebLinkAbout25-518 Newcomer PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 16, 2025 To the Requester: Eric Newcomer 25-518 Dear Mr. Newcomer: This responds to your letter dated March 27, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a township supervisor with regard to receiving compensation for serving in a part-time position with the township as a general administrative assistant. Brief Answer: NO. The Ethics Act would not prohibit the individual from receiving compensation for serving as a part-time general administrative assistant with the township. However, in his capacity as a township supervisor, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters pertaining to his service as a part-time general administrative assistant, including but not limited to the supervision of his own work and the approval of his own timecards. Facts: Yourequest an advisory from the Commission based upon submitted factsthat may be fairly summarized as follows. Newcomer, 25-518 April 16, 2025 Page 2 You are a Supervisor for Muncy Creek Township (“Township”), located in Lycoming County, Pennsylvania. The Township recently created the part-time position of General Administrative Assistant, which reports to the Township Secretary/Treasurer. You have submitted a copy of a job description for this position, which document is incorporated herein by reference. Per the job description, the General Administrative Assistant is responsible for assisting with the maintenance of Township records and communications. The duties of the General Administrative Assistant include assisting in maintaining short-term investment schedules, assisting in the preparation of the annual budget, assisting in grant writing and distribution, and assisting in the maintenance of various files and records. At the organizational meeting of the Township Supervisors on January 6, 2025, you were appointed to the part-time General Administrative Assistant position. At a meeting on January 7, 2025, the Township Board of Auditors determined the compensation for this position. The Township has not yet paid you for performing duties as the General Administrative Assistant. Based upon the above submitted facts, you ask whether you may be paid for performing work as the General Administrative Assistant, and if so, whether there would be any requirements regarding who may supervise your work or approve your timecards. 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 1103(j) 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. (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 Newcomer, 25-518 April 16, 2025 Page 3 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, whereone 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 asotherwise provided herein. 65 Pa.C.S. §§ 1103(a), 1103(j). The following terms related to Section 1103(a) 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. 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 Newcomer, 25-518 April 16, 2025 Page 4 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 includevoting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. It is noted that Section 65602(c) of the Second Class Township Code, 53 P.S. § 65602(c), provides, in pertinent part, that a township board of supervisors “may appoint a supervisor to be employed as roadmaster, laborer, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act.” Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act.You generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. The Ethics Act would not prohibit you from being paid for performing work as the General Administrative Assistant. However, pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as a Township Supervisor in matters that would impact your employment as the General Administrative Assistant. You specifically would have a conflict of interest with regard to supervising your own work as the General Administrative Assistant and approving your own timecards. The Ethics Act would not prohibit another Township Supervisor or the Township Secretary/Treasurer from supervising your work and approving your time cards. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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. Newcomer, 25-518 April 16, 2025 Page 5 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel