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HomeMy WebLinkAbout05-604 LiskoJohn M. Lisko, Esquire 1 East Main Street Waynesboro, PA 17268 Dear Mr. Lisko: ADVICE OF COUNSEL January 6, 2006 06 -504 Re: Conflict; Public Official; Township Supervisor; Political Contribution; Subdivision Plan; Incumbent; De Minimis. This responds to your letter of December 8, 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 supervisor who received a $500 political contribution as an incumbent from a local surveyor with regard to participating in or voting on matters pertaining to subdivision plans for which the surveyor performed surveying work or for land that the surveyor owns. Facts: As Solicitor for Washington Township, you seek an advisory on behalf of Arthur T. Cordell ("Cordell') and Richard Mohn ( "Mohn "). Both Cordell and Mohn serve on the Township Board of Supervisors, a five - member board. On May 5, 2005, Cordell and Mohn both received political contributions from three long -time friends. Two of the friends made separate contributions to Cordell and Mohn in the amount of $100, while the third friend made separate contributions to Cordell and Mohn in the amount of $500. You state that at the time the contributions were made, there was no discussion at all about any future votes. You further state that Cordell and Mohn would have been offended if there would have been the slightest hint that the contributions were offered in order to influence their actions as Supervisors in any manner such that Cordell and Mohn would have rejected the contributions. The friend who made a $500 contribution to Cordell and a $500 contribution to Mohn is a local surveyor in the Township. During the last Supervisor's meeting on December 5, 2005, a motion was made by another Supervisor that Cordell and Mohn be prohibited from voting on the subdivision plans for various individuals that were prepared by the surveyor due to a conflict of interest. You note that the surveyor was Lisko /Cordell /Mohn, 06 -504 January 6, 2006 Page 2 not the owner of the land that was the subject of the plans, but only the surveyor of the land. Consideration of the subdivision plans was continued to the December 19, 2005, meeting. You state that the Board must act upon one or more of the subdivision plans at the December 19, 2005, meeting. You further state that the surveyor who made the political contributions may submit a plan to the Board regarding land that he owns. Based upon the foregoing facts, you ask whether Cordell and Mohn would have a conflict of interest under the Ethics Act with regard to participating in or voting on matters pertaining to subdivision plans for which the surveyor performed surveying work or for land that the surveyor owns. 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 Township Supervisors, Cordell and Mohn are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that Act. 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 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. Lisko /Cordell /Mohn, 06 -504 January 6, 2006 Page 3 65 Pa.C.S. § §1103(a), (j). 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 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 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. Additionally, we parenthetically note that Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: §1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that Lisko /Cordell /Mohn, 06 -504 January 6, 2006 Page 4 public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). The term "person" is defined in the Ethics Act as follows: § 1102. Definitions "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102. We note Sections 1103(b) and 1103(c) of the Ethics Act not to suggest that you would engage in such conduct, but merely to provide a complete response to the questions presented. Finally, the Ethics Act defines "gift" as follows. § 1102. Definitions "Gift." Anything which is received without consideration of equal or greater value. The term shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. 65 Pa.C.S. § 1102 (Emphasis added). In applying the above provisions of the Ethics Act to the question that you have posed, the Commission recently addressed the question of whether the acceptance of a campaign contribution would form the basis for a conflict of interest in Confidential Opinion, 04 -009. In that Opinion, the Commission stated: Under the submitted facts, it is not clear whether you were an incumbent or non - incumbent candidate at the times you received political contributions from Individual D. Therefore, you are generally advised that for donations you received as a non - incumbent, Wolfgang, supra, would apply, Section 1103(a) would not be relevant, and only Sections 1103(b) and 1103(c) would be considered. For donations you received as an incumbent, all of these Sections would be considered. Based upon the above, you are advised that for any political contributions you received from Individual D while you were a non - incumbent, the Ethics Act would not restrict you from investigating or prosecuting Individual D, conditioned upon the assumption that there has been no improper influence based upon understanding(s) as to such contributions. As for any political contributions you received from Individual D while you were an incumbent, you are advised that you would be precluded from any involvement as to the Lisko /Cordell /Mohn, 06 -504 January 6, 2006 Page 5 investigation or prosecution of Individual D if: (1) any improper influence based upon understanding(s) as to such contributions would exist; or (2) the elements of a conflict of interest would exist. In making a determination as to whether a conflict of interest would exist, there have been various cases before this Commission in which we have found violations of the Ethics Act based upon particular facts involving public officials accepting gifts from vendors or individuals and acting upon matters which the donors had pending before the governmental body. See, e.q., Sickles, Order 901; Helsel, Order 801; Volpe, Order 579 -R; Smith, Order 578 -R; Zolfo, Order No. 577. As these cases illustrate, we consider certain factors, including the amount of the gift and the timing of the gift, to be relevant. For example, where the value of the gift is "de minimis" (insignificant) or where the gift is received at a remote point in time so as not to impact the public official's official action as to the donor, the public official does not have a conflict of interest. Although a properly reported political contribution is not a "gift" as that term is defined under the Ethics Act (see, 65 Pa.C.S. § 1102), political contributions are things of value so as to make prior precedent involving gifts analogous and instructive. Confidential Opinion, 04 -009 at 4, 5. Based upon Confidential Opinion, 04 -009, it would appear that the political contributions to Cordell and Mohn were made while they were incumbents. Thus, Cordell and Mohn would be precluded from participating in or voting on matters pertaining to subdivision plans for which the surveyor performed surveying work or for land that the surveyor owns if: (1) any improper influence based upon understanding(s) as to such contributions would exist; or (2) the elements of a conflict of interest would exist. As to the above, you indicate that no improper understanding(s) existed at the time Cordell and Mohn received a contribution from the surveyor. In addition, you indicate that the amount of the individual contribution made by the surveyor to Cordell and Mohn was $500, which amount is de minimis. The de minimis exclusion to the definition of "conflict" or "conflict of interest" precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. See, Kolb, Order 1322; Schweinsburq, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case -by -case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $562 to be de minimis. Because there were no improper understanding(s) and because the amount of the individual contribution was de minimis, neither Cordell nor Mohn would be precluded from participating in or voting on matters pertaining to subdivision plans for which the surveyor performed surveying work or for land that the surveyor owns. 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. Lisko /Cordell /Mohn, 06 -504 January 6, 2006 Page 6 Conclusion: As Supervisors for Washington Township, Arthur T. Cordell ( "Cordell ") and Richard Mohn ( "Mohn" ) are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Neither Cordell nor Mohn who each received a $500 political contribution as an incumbent from a local surveyor would be precluded from participating in or voting on matters pertaining to subdivision plans for which the surveyor performed surveying work or for land that the surveyor owns because there were no improper understanding(s) based upon your factual representation in contravention of Sections 1103(b) and (c) of the Ethics Act and because the amount of the individual contribution was de minimis. 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