HomeMy WebLinkAbout06-599 PANCOEStephen J. Pancoe
570 Stenhour Road
York Haven, PA 17370
Dear Mr. Pancoe:
ADVICE OF COUNSEL
November 22, 2006
06 -599
This responds to your letter of October 25, 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., would present any prohibition or restrictions upon a township
supervisor, who is acquainted with the son of a local developer as a result of the
supervisor's employment in a private capacity, with regard to voting on matters before
the township board of supervisors that would involve the developer.
Facts: You are a member of the Board of Supervisors of Newberry Township (the
"Township"), to which you were elected in November 2005. In addition to serving as a
Township Supervisor, you are employed by the Pennsylvania House of Representatives
Republican Caucus as the Staff Director in the Office of the Majority Caucus
Administrator, Representative Merle H. Phillips. In your capacity as Staff Director, you
interact with various local elected officials and support staff in the House of
Representatives. You have been acquainted with Mark McNaughton, a Member of the
House of Representatives, since he was elected to that body in 1997. However, you do
not maintain any type of personal relationship with him.
Representative McNaughton's father, Mr. McNaughton, is a developer in the
Central Pennsylvania region, which includes the Township. The Chairman of the
Township's Board of Supervisors has implied that since you are acquainted with
Representative McNaughton through your employment with the House of
Representatives, you would have a conflict of interest in voting on any issues before the
Board of Supervisors that would involve Mr. McNaughton.
You ask whether you would have a conflict of interest with respect to matters
before the Board of Supervisors that would involve Mr. McNaughton.
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
Pancoe, 06 -599
November 22, 2006
Page 2
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
(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.
65 Pa.C.S. § 1102.
"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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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
immediate family is a director, officer, owner, employee or
has a financial interest.
Pancoe, 06 -599
November 22, 2006
Page 3
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(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.
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.
Pancoe, 06 -599
November 22, 2006
Page 4
Based upon the submitted facts, you are advised as follows. Your
acquaintanceship with Representative McNaughton would not itself provide the basis for
a conflict of interest under Section 1103(a) of the Ethics Act with respect to matters
before the Township Board of Supervisors that would involve his father, Mr.
McNaughton. Provided that you do not have a business or financial relationship with
Mr. McNaughton, you would not have a conflict of interest under Section 1103(a) in
participating in matters before the Township Board of Supervisors that would involve Mr.
McNaughton.
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 respective municipal code.
Conclusion: As a Supervisor for Newberry Township (the "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. Your acquaintanceship with Representative
McNaughton, who is the son of a local developer, Mr. McNaughton, would not itself
provide the basis for a conflict of interest under Section 1103(a) with respect to matters
before the Township Board of Supervisors that would involve Mr. McNaughton.
Provided that you do not have a business or financial relationship with Mr. McNaughton,
you would not have a conflict of interest under Section 1103(a) in participating in
matters before the Township Board of Supervisors that would involve Mr. McNaughton.
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