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HomeMy WebLinkAbout06-591 BurkeMichael J. Burke Sterling Township Board of Supervisors P.O. Box 100 Sterling, PA 18463 Dear Mr. Burke: ADVICE OF COUNSEL October 13, 2006 06 -591 This responds to your letter, which was received on September 18, 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 from voting to pay a bill submitted by the solicitor for the township's zoning hearing board when: (1) the solicitor was appointed by the zoning hearing board in June 2006; and (2) the solicitor has not filed a Statement of Financial Interests for calendar year 2005 with the township's secretary. Facts: You are the Chairman of the Board of Supervisors of Sterling Township ("Township "), a second class township in Wayne County. As a member of the Board of Supervisors, one of your responsibilities is to vote on the payment of bills that are submitted to the Township. In June 2006, the Zoning Hearing Board appointed an individual and not a law firm to serve as the Solicitor for the Zoning Hearing Board. The Township recently received a bill from the Solicitor, which is apparently for work performed for a recent hearing held by the Zoning Hearing Board. During the course of a hearing, it was brought to your attention that the Solicitor has not filed a Statement of Financial Interests for calendar year 2005 with the Secretary of the Township. It is your understanding that pursuant to Section 1104(d) of the Ethics Act, a public official who has not filed a Statement of Financial Interests is not permitted to be paid with public funds. It was also brought to our attention that at the time the Solicitor for the Zoning Hearing Board was appointed, the members of the Zoning Hearing Board had not filed Statements of Financial Interests. It is your understanding that pursuant to Section Burke, 06 -591 October 13, 2006 Page 2 1104(d) of the Ethics Act, the members of the Zoning Hearing Board had no authority to make the appointment of the Solicitor. You ask whether you would violate Section 1104(d) of the Ethics Act by voting to pay the bill submitted by the Solicitor for the Zoning Hearing Board when the Solicitor has not filed a Statement of Financial Interests for calendar year 2005. 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 also initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may only be given to the person whose prospective conduct is in question, his authorized representative, or, when applicable, his appointing body or employer. To the extent that you question the propriety of the appointment of the Solicitor by the Zoning Hearing Board, such conduct cannot be addressed because: (1) without the express permission of the members of the Zoning Hearing Board, you are considered a third party without legal standing to inquire as to their conduct; and (2) past conduct cannot be addressed in the context of an advisory. Therefore, this advisory must necessarily be limited to addressing only your prospective conduct. As Chairman of the Board, 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 1104 of the Ethics Act provides: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. (d) Failure to file required statement. - -No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation Burke, 06 -591 October 13, 2006 Page 3 from public funds, unless he has filed a statement of financial interests as required by this chapter. 65 Pa. C. S. §§ 1104(a), (d). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. "Solicitor." A person elected or appointed to the office of solicitor for the political subdivision. You ask whether you would transgress the Ethics Act by voting to pay the bill submitted by the Solicitor for the Zoning Hearing Board when the Solicitor has not filed a Statement of Financial Interests for calendar year 2005. On its face, Section 1104(d) of the Ethics Act does not apply to restrict a member of a municipal board from voting to make payment(s) to a public official who has not filed a Statement of Financial Interests as required by Section 1104(a) of the Ethics Act. Rather, Section 1104(d) applies to restrict the conduct of a public official who has not filed a Statement of Financial Interests as required by Section 1104(a), in that the public official is restricted from receiving compensation from public funds. Therefore, Section 1104(d) is neither applicable nor prohibitive with respect to whether you may vote to pay the bill submitted by the Solicitor for the Zoning Hearing Board. Parenthetically, it is noted that in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), based upon an analysis of prior precedents including Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988), and P.J.S v. State Ethics Commission, 669 A.2d 1105 (Pa. Cmwlth. 1996), the Commonwealth Court of Pennsylvania determined that a municipal Solicitor who is retained by— as opposed to being an employee of— the municipality is not a "public official" or "public employee" as defined in the Ethics Act. The State Ethics Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied by the Supreme Court of Pennsylvania. See, 550 Pa. 686, 704 A.2d 640 (1997). The propriety of your proposed conduct shall also be considered under Section 1103(a) 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. The following term is defined in the Ethics Act as follows: Burke, 06 -591 October 13, 2006 Page 4 § 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. In applying Section 1103(a) of the Ethics Act to the instant matter, you are advised as follows. Provided that the Solicitor is not a member of your immediate family and that you do not have a business or financial relationship with the Solicitor, you would not have a conflict of interest under Section 1103(a) of the Ethics Act and thus would not be restricted by that Section from voting to pay the bill submitted by the Solicitor. Lastly, you are advised that if you believe that certain public officials and /or public employees have not filed Statements of Financial Interests as required by Section 1104(a) of the Ethics Act, you may forward a list containing the names, addresses, their governmental bodies, and positions of those individuals to the Investigative Division of the State Ethics Commission. 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 the Chairman of the Board of Supervisors of Sterling 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. On its face, Section 1104(d) of the Ethics Act does not apply to restrict a member of a municipal board from voting to make payments to a public official who has not filed a Statement of Financial Interests as required by Section 1104(a) of the Ethics Act. Rather, Section 1104(d) applies to restrict the conduct of a public official who has not filed a Statement of Financial Interests as required by Section 1104(a), in that the public official is restricted from receiving compensation from public funds. Therefore, Section 1104(d) is neither applicable nor prohibitive with respect to whether you may vote to pay a bill submitted by the Solicitor for the Township's Zoning Hearing Board when the Solicitor has not filed a Statement of Financial Interests for calendar year 2005. Provided that the Solicitor is not a member of your immediate family and that you do not have a business or financial relationship with the Solicitor, you would not have a conflict of interest under Section 1103(a) of the Ethics Act and thus would not be restricted by that Section from voting to pay the bill submitted by the Solicitor. 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 Burke, 06 -591 October 13, 2006 Page 5 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