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HomeMy WebLinkAbout06-510 BarbieriDave Barbieri 1000 Pepper Ridge Drive Reading, PA 19606 ADVICE OF COUNSEL January 27, 2006 06 -510 Re: Conflict; Public Official /Public Employee; Township Supervisor; Solicitor; Partner; Political Contribution to Supervisor. Dear Mr. Barbieri: This responds to your faxed transmission of December 25, 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., would present any prohibition or restrictions upon a Township Supervisor with regard to voting to appoint a law firm as Township Solicitor when a partner of said law firm provided a political contribution in the amount of $250 to the Supervisor's re- election committee in the form of a personal check from the partner and his wife. Facts: As a Supervisor of Exeter Township ( "Township "), you seek an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. Each year at its re- organization meeting, the Township Board of Supervisors appoints a law firm as Township Solicitor. You have served as a Township Supervisor for the past three years. During this time, you have voted to appoint the law firm of Hoffert, Huckabee & Weiler, PC ("Firm ") as Solicitor for the Township. You note that the Firm has served as the Township Solicitor for the past several decades. In November 2005 you were re- elected Township Supervisor. One of the Firm's partners provided a $250 donation to your re- election committee in the form of a personal check from the partner and his wife. You state that this donation has been reported in documents filed with the Berks County Board of Elections. You state that you have consulted with attorneys who have indicated that you would not be prohibited from voting to appoint the Firm as Township Solicitor. However, Barbieri, 06 -510 January 27, 2006 Page 2 you state that one of your fellow Supervisors is of the view that you would be prohibited from doing so. You ask whether, pursuant to the Ethics Act, you may vote to appoint the Firm as Township Solicitor in light of the aforesaid monetary contribution to your re- election committee. 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. It is further 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. As a Township Supervisor, you are a public official subject to the provisions of the Ethics 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 Barbieri, 06 -510 January 27, 2006 Page 3 permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. Subject to certain voting conflict exceptions (see, Pavlovic, Opinion 02 -005), Section 1103(j) of the Ethics Act requires a public official /public employee with a conflict of interest 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, it is parenthetically noted 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 Barbieri, 06 -510 January 27, 2006 Page 4 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 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). Sections 1103(b) and 1103(c) of the Ethics Act are noted herein 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 the term "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, it is initially noted that there are two Commission Opinions that have considered whether political contributions may form the basis for a violation of the Ethics Act. In Wolfgang, Opinion 89 -028, the Commission addressed the issue of whether a non - incumbent candidate for office who received political contributions from building contractors could, if elected, vote on issues involving those contractors without transgressing Section 3(a) (now Section 1103(a)) of the Ethics Law. The Commission determined that because Wolfgang was a non - incumbent candidate, Section 3(a) did not apply; thus, the Commission was limited to deciding the matter based only upon Sections 3(b) and 3(c) (now Sections 1103(b) and 1103(c)) of the Ethics Law (pertaining to improper influence). The Commission stated: As to Sections 3(b) and (c) of the Ethics Law, the fact that someone has made a contribution to a campaign for public office does not per se create an "understanding" between the contributor and candidate which would be prohibited by the two sections of the Ethics Law. On the submitted facts, we have no evidence to indicate that any understanding exists between the receipt of the contributions and your future voting, if you are elected. Therefore, based upon the facts as you presented them and based upon the express assumption that no understanding exists, the Ethics Law would not restrict your voting on issues as to these contractors. Wolfgang, supra, at 3. Barbieri, 06 -510 January 27, 2006 Page 5 In Confidential Opinion, 04 -009, a county official (referred to as Official A) requested a confidential advisory as to whether he /she would have a conflict of interest under the Ethics Act with regard to an ongoing investigation of another county official (referred to as Official C) where these individuals had made political contributions to each other's campaigns. Under the submitted facts, it was not clear whether Official A was an incumbent or non - incumbent candidate at the times he /she received political contributions from Official C. It was also unknown whether the political contributions that the officials made to each other's campaigns occurred so close in time so as to create a set -off, whether the amounts were de minimis or significant, or whether other relevant factors existed that would impact a determination of whether Official A would have a conflict of interest under the Ethics Act. The Commission determined that in the absence of sufficient facts, only general guidance could be provided to Official A. The Commission held: A political contribution otherwise reported as required by law, while not a "gift," could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. The Official A would be precluded from participating in the investigation or prosecution of the county Official C if, while the Official A was an incumbent or a non - incumbent candidate, the individual now serving as the county Official C made political contributions to the Official A's campaign and any improper understandings in contravention of the Ethics Act existed. Conditioned upon the assumption that no improper understandings existed, the Official A would be precluded from participating in the investigation or prosecution of the county Official C only if: (1) the political contributions were received while the Official A was an incumbent; and (2) the elements of a conflict of interest would exist. A conflict of interest would exist if the amount of the political contributions was greater than de minimis, and the political contributions were received at such a time and under such circumstances as to impact the Official A's official action as to the county Official C. Confidential Opinion, 04 -009 at 5. In applying the above Commission precedents to the facts that you have submitted, you are advised as follows. Conditioned upon the assumptions that: (1) no improper understanding(s) existed as to the $250 political contribution submitted by the Firm's partner to your political committee; and (2) there is no other basis for a conflict of interest on your part as to the appointment of the Township Solicitor, you would not have a conflict of interest in voting to appoint the Firm as Township Solicitor because under the facts that you have submitted, the $250 political contribution that you received in the form of a personal check from the Firm's partner and his wife would be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). 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 Supervisor for Exeter Township, 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 inquiry as to whether the Ethics Act would present any prohibition or restrictions upon you with regard to voting to appoint the law Barbieri, 06 -510 January 27, 2006 Page 6 firm of Hoffert, Huckabee & Weiler, PC ( "Firm ") as Solicitor for the Township when a partner of the Firm provided a political contribution in the amount of $250 to your re- election committee in the form of a personal check from the partner and his wife, you are advised as follows. Conditioned upon the assumptions that: (1) no improper understanding(s) existed as to the $250 political contribution submitted by the Firm's partner to your political committee; and (2) there is no other basis for a conflict of interest on your part as to the appointment of the Township Solicitor, you would not have a conflict of interest in voting to appoint the Firm as Township Solicitor because under the facts that you have submitted, the $250 political contribution that you received in the form of a personal check from the Firm's partner and his wife would be 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