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HomeMy WebLinkAbout06-562 DeLucaGregory E. DeLuca, Chairman Hanover Township Supervisors P.O. Box 505 Clinton, PA 15026 Dear Mr. DeLuca: ADVICE OF COUNSEL June 2, 2006 06 -562 This responds to your letter we received on May 3, 2006, 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 on a three- member board with regard to seconding a motion on a conditional use request for his property where: (1) the non - conflicted supervisor makes the motion; and (2) one supervisor is absent from the meeting. Facts: You are Chairman of the three - member Board of Supervisors for Hanover Township ( "Township "), Beaver County. You state that one of the Supervisors lost power in December 2005, has not attended a meeting since that time and has stated that he will not attend any meetings for the remainder of his term. Given these circumstances, you ask whether you make second a motion made by another supervisor to approve a conditional use request for your personal property. 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 Supervisor, you are a "public official" as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities DeLuca, 06 -562 June 2, 2006 Page 2 (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. 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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall DeLuca, 06 -562 June 2, 2006 Page 3 responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa. C. S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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. DeLuca, 06 -562 June 2, 2006 Page 4 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 the instant matter, if you would financially benefit as a result of the Board approving the Conditional Use request for your property, you would have a conflict of interest under Section 1103(a) of the Ethics Act in participating matters relative to that request. In each instance of a conflict, you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Where a conflict would exist under the Ethics Act, you would still be permitted to participate under certain limited circumstances as enunciated in Section 1103(j) of the Ethics Act. In Garner, Opinion 93 -004, the Commission considered the issue of whether, under Section 30) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. DeLuca, 06 -562 June 2, 2006 Page 5 In applying Garner to the submitted facts, you are advised that under Section 1103(j) of the Ethics Act, you would be permitted to second a motion only in a situation where: (1) the two remaining Supervisors would have opposing views; or (2) one of the other two Supervisors would be absent from the meeting. Allowing you to second the motion in either of the above scenarios would put the matter in a posture for a vote. Although you would be permitted to second the motion, you would still have a conflict of interest in voting on the conditional use request under Section 1103(a) of the Ethics Act. Voting on the conditional use request would only be permissible in a situation where the remaining two Supervisors would cast opposing votes, in which case, you could vote to break the tie provided you would make the proper disclosures under Section 1103(j) of the Ethics Act. However, given your statement that one of the supervisors will not attend any meetings for the remainder of his term, this provision of Section 1103(j) will not become operable. 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 Hanover Township ( "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. If you would financially benefit as a result of the Board approving the Conditional Use request for your property, you would have a conflict of interest under Section 1103(a) of the Ethics Act in participating matters relative to that request. In each instance of a conflict you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Where a conflict would exist under the Ethics Act, you would still be permitted to participate under certain limited circumstances as enunciated in Section 1103(j) of the Ethics Act. . Under Section 1103(j) of the Ethics Act, you would be permitted to second a motion only in a situation where: (1) the two remaining Supervisors would have opposing views; or (2) one of the other two Supervisors would be absent from the meeting. Allowing you to second the motion in either of the above scenarios would put the matter in a posture for a vote. Although you would be permitted to second the motion, you would still have a conflict of interest in voting on the conditional use request under Section 1103(a) of the Ethics Act. Voting on the conditional use request would only be permissible in a situation where the remaining two Supervisors would cast opposing votes, in which case, you could vote to break the tie provided you would make the proper disclosures under Section 1103(j) of the Ethics Act. However, given your statement that one of the supervisors will not attend any meetings for the remainder of his term, this provision of Section 1103(j) will not become operable. 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. DeLuca, 06 -562 June 2, 2006 Page 6 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