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Home My WebLink About05-547 WinningRobert J. Garvin, Esquire Goldberg Kamin & Garvin 1806 Frick Building 437 Grant Street Pittsburgh, PA 15219 -6101 ADVICE OF COUNSEL May 27, 2005 05 -547 Re: Conflict; Public Official /Employee; Township; Commissioner; School District Employee; Charter School; Vote. Dear Mr. Garvin: This responds to your letter of April 28, 2005, 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 commissioner with regard to voting on a matter to which his employer, a school district, is publicly opposed. Facts: As the Solicitor for the Township of Robinson ( "Township "), Allegheny ounty, you seek an advisory on behalf of David Winning ( "Winning "), a Township Commissioner. You have submitted facts, the material portions of which, may be fairly summarized as follows. Winning is employed full -time as the Physical Plant Manager for the Montour School District ( "School District "), which serves the Township and other adjoining communities. Winning reports directly to the Superintendent of the School District. You state that an entity known as Propel Charter School — Montour submitted an application to the School District for approval of a charter school pursuant to the Charter School Law, 24 P.S. § 17- 1701 -A et seq. The request for approval was denied by the School District, but was subsequently approved by the Commonwealth of Pennsylvania Department of Education ( "PDE "). The School District appealed PDE's decision to Commonwealth Court. The question you pose is whether Winning may vote on a matter to which his employer, the School District, is publicly opposed. You state that there has been no Garvin, 05 -547 May 27, 2005 Page 2 evidence that his continued employment with the School District is dependent upon his vote in this matter, or that he may suffer adverse employment consequences if he is required to vote. 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 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 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 requester has truthfully disclosed all of the material facts. As a Township Commissioner, Winning is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that 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. "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 Garvin, 05 -547 May 27, 2005 Page 3 immediate family is a director, officer, owner, employee or has a financial interest. 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. § 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/ 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 instant matter, 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 order for a violation of Section Garvin, 05 -547 May 27, 2005 Page 4 1103(a) to be found by the State Ethics Commission, each of the above elements must be established by clear and convincing evidence. 65 Pa.C.S. § 1108. Based upon the facts that you have submitted, Winning would not have a conflict of interest under the Ethics Act with regard to voting on a matter to which his employer, the School District, is publicly opposed because the requisite element of a prohibited private pecuniary benefit would be lacking. There is no indication in the submitted facts of any factual basis for a prohibited private pecuniary benefit. Absent the statutory elements, Winning would not have a conflict 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 First Class Township Code, the Public School Code of 1949, as amended, or the Charter School Law. Conclusion: As a Robinson Township Commissioner, David Winning ( "Winning ") 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. Based upon the facts that you have submitted, Winning would not have a conflict of interest under the Ethics Act with regard to voting on a matter to which his employer, the Montour School District ( "School District "), is publicly opposed because the requisite element of a prohibited private pecuniary benefit would be lacking. There is no indication in the submitted facts of any factual basis for a prohibited private pecuniary benefit. Absent the statutory elements, Winning would not have a conflict of interest under the Ethics Act. 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 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