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HomeMy WebLinkAbout04-606 DiPalmaJames R. DiPalma 398B Rich Hill Road Cheswick, PA 15024 Dear Mr. DiPalma: ADVICE OF COUNSEL December 23, 2004 04 -606 Re: Conflict; Public Official; Township Supervisor; Member, Joint Sewage Authority Board; Appointment To New Term on Authority; Private Pecuniary Benefit; Five - Member Board; Deadlock; Vote. This responds to your letter of November 22, 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., a public official serving as a member of a five - member board of township supervisors and as a member of a joint sewage authority would be permitted to vote to appoint himself to a new term on the joint sewage authority under the following circumstances: (1) sewage authority members would not receive compensation for serving as board members; (2) sewage authority officers would receive $500 per quarter for their officer positions; and (3) two Township Supervisors would vote in favor of his appointment and the other two Township Supervisors would either vote against his appointment or abstain from voting. Facts: You currently serve as a Township Supervisor for Harmar Township ( "Township ") The Township Board of Supervisors is a five - member Board. You also serve as a Member of the Allegheny Valley Joint Sewage Authority ( "Authority "). Your current term of office as an Authority Board Member will end on December 31, 2005. You state that a new five -year term is available on the Authority. At the upcoming Township reorganization meeting, you would like to resign as to your current term on the Authority in order to seek appointment to the new five -year term on the Authority. You note that Authority Board Members do not receive compensation for their service as Board Members. However, Authority Officers receive $500 per quarter for their officer positions. Based upon the foregoing facts, you ask whether you may vote to appoint yourself to the new five -year term on the Authority if two Township Supervisors vote in DiPalma, 04 -606 December 23, 2004 Page 2 favor of your appointment and the other two Township Supervisors either vote against your appointment or abstain from voting. Finally it is noted that you have submitted a copy of Township Ordinance No. 346, which indicates that the Township Supervisors do not receive compensation for attending Township Board meetings or hearings. 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. As a Township Supervisor and as an Authority Board Member, you are a public official as that term is defined in the Ethics Act, and hence you are 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 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. 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 DiPalma, 04 -606 December 23, 2004 Page 3 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. 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 of interest, 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. However, Section 1103(j) further provides certain narrow exceptions where voting is permitted despite a conflict, if certain stringent prerequisite conditions are met. In considering the facts that you have submitted, you are advised that you would be permitted to participate in the vote to appoint yourself to the new five -year term on the Authority if you would receive no compensation as an Authority Member or officer. If you would receive no compensation as an Authority Member or officer (such that you would decline any officer compensation to which you might otherwise be entitled), then you would not have a conflict of interest under Section 1103(a) of the Ethics Act as to voting to appoint yourself to the Authority because the requisite element of a private pecuniary benefit would be lacking. However, if there would be a reasonable expectation that following your appointment to the new five -year term on the Authority, you would receive compensation as an Authority officer, then you would have a conflict of interest under the Ethics Act and you would be prohibited from participating in appointing yourself to the new five -year term on the Authority. (See, e.g., Waleski, Order 1331; Rembold, Order 1303; and Snyder, Order 979 -2, aff'dnyder v. State Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996), alloc. den., 0029 M.D. Allocatur Docket 1997 (Pa. DiPalma, 04 -606 December 23, 2004 Page 4 December 22, 1997), involving the reasonable expectation of a financial benefit). In that instance, you would be required to abstain fully from the matter of your appointment to the Authority and you would also be required to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. Neither of the voting conflict exceptions of Section 1103(j) of the Ethics Act would apply under the facts that you have submitted, and therefore you would not be permitted to vote despite a conflict. This is because the exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies, and the only exception that enables a member of a five - member board to vote despite a conflict of interest requires as a prerequisite condition that the board be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable. Pavlovic, Opinion 02 -005. That prerequisite condition is not met when only one or two members of the five - member board have conflicts, or when such members abstain for reasons other than having a conflict of interest under the Ethics Act. Pavlovic, supra. Therefore, you are advised that when you, as a member of the five - member Township Board of Supervisors, would be the only member with a conflict of interest under the Ethics Act, you would not be permitted to vote to break a tie vote of the other four supervisors, or to vote if two Supervisors would abstain for reasons other than having conflicts of interest under the Ethics Act. 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. Conclusion: As a Township Supervisor for Harmar Township ( "Township ") and as a Member of the Allegheny Valley Joint Sewage Authority ( "Authority "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. In response to your question of whether you may vote to appoint yourself to a new five -year term on the Authority under the following circumstances: (1) sewage authority members would not receive compensation for serving as board members; (2) sewage authority officers would receive $500 per quarter for their officer positions; and (3) two Township Supervisors would vote in favor of your appointment and the other two Township Supervisors would either vote against your appointment or abstain from voting, you are advised as follows. You would be permitted to participate in the vote to appoint yourself to the new five -year term on the Authority if you would receive no compensation as an Authority Member or officer. However, if there would be a reasonable expectation that following your appointment to the new five -year term on the Authority, you would receive compensation as an Authority officer, then you would have a conflict of interest under the Ethics Act and you would be prohibited from participating in appointing yourself to the new five -year term on the Authority. In that instance, you would be required to abstain fully from the matter of your appointment to the Authority and you would also be required to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Neither of the voting conflict exceptions of Section 1103(j) of the Ethics Act would apply under the facts that you have submitted, and therefore you would not be permitted to vote despite a conflict. 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 requester has disclosed DiPalma, 04 -606 December 23, 2004 Page 5 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