HomeMy WebLinkAbout07-003 DENNISJanice T. Dennis
4251 East Stancliff Road
P.O. Box 104
McKean, PA 16426 -0104
Dear Ms. Dennis:
2006.
I. ISSUE:
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 1/9/07
DATE MAILED: 1/23/07
07 -003
This Opinion is issued in response to your advisory request letter dated October 6,
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would impose prohibitions or restrictions upon a Township Secretary/Zoning
Administrator with regard to engaging in communications pertaining to her candidacy for
Township Supervisor during her Township work hours or while she is otherwise performing
duties for the Township or is present at the Township office property.
II. FACTUAL BASIS FOR DETERMINATION:
As Secretary /Zoning Administrator for McKean Township ( "Township "), you request
an advisory opinion from this Commission based upon the following submitted facts.
As the appointed Township Secretary, you work directly under the Board of
Supervisors in a one - person office. Your responsibilities include depositing monies and
drafting resolutions and ordinances. You answer all telephone calls to the Township, and
you assist persons who come into the Township building. You also serve as the
Township's appointed Zoning Administrator.
In 2007, you will be running for the office of Township Supervisor. You ask whether
Dennis, 07 -003
January 23, 2007
Page 2
the Ethics Act would impose prohibitions or restrictions upon you with regard to engaging
in communications pertaining to your candidacy in the course of performing your Township
duties. You specifically inquire as to any limitations that would be placed upon you by the
Ethics Act with regard to responding to questions about your candidacy posed by persons
telephoning or coming into the Township office.
By letter dated November 8, 2006, you were notified of the date, time and location
of the public meeting at which your request would be considered.
III. 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, this 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 the Township Secretary /Zoning Administrator, you are a public official /public
employee subject to the provisions 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.
65 Pa.C.S. § 1103(a).
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.
Dennis, 07 -003
January 23, 2007
Page 3
65 Pa. C. S. § 1102.
You inquire as to whether the Ethics Act would impose prohibitions or restrictions
upon you with regard to engaging in communications pertaining to your candidacy for
Township Supervisor in the course of performing your Township duties. You specifically
inquire as to the propriety of responding to questions about your candidacy posed by
persons telephoning the Township or coming into the Township office.
In applying Section 1103(a) of the Ethics Act to your inquiry, it is noted that the use
of government staff, time, equipment, facilities, or property for non - governmental
purposes — including business, personal, or political purposes —is generally prohibited and
may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q.,
Confidential Opinion, 05 -001; Heck, Order 1251, Holt, Order 1153 (business purposes);
Moore, Order 1317, Meduka, Order 1277, Sullivan, Order 1245, Dovidio, Order 1202
(personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004,
Freind, Order 800 (political purposes). This Commission has long held that government
offices, facilities, equipment, and personnel are to be used for governmental purposes and
not for private, business or campaign /re- election activities. See, Smythe, Order 1121;
Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo, Opinion 97 -005.
Based upon the above precedents, you are advised that generally, Section 1103(a)
of the Ethics Act would prohibit you from engaging in conversations regarding your
candidacy during your Township work hours or while you are otherwise performing duties
for the Township or are present at the Township office property.
However, we recognize that at times a public official /public employee might receive
unsolicited questions regarding her candidacy without in any way inviting such questions.
We also recognize that it might be necessary at times to provide a brief response to such
an unsolicited question in order to curtail further non - governmental communications in the
government work place. Cf., Confidential Opinion, 05 -001, supra.
We further note that the statutory definition of "conflict" or "conflict of interest"
contains an exclusion, hereinafter referred to as the "de minimis" exclusion, which
precludes a finding of a conflict of interest as to an action having a de minimis
(insignificant) economic impact. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa.
Cmwlth. 2004); Kolb, Order 1322; Schweinsburq, Order 900.
A straightforward application of the de minimis exclusion to the question that you
have posed necessitates the conclusion that Section 1103(a) of the Ethics Act would not
prohibit you from using government equipment /facilities and time on a very limited basis to
reply to unsolicited questions regarding your candidacy for the office of Township
Supervisor under the following conditions: (1) the use of government equipment /facilities
and time for non - governmental purposes would have to be so strictly limited as to have a
de minimis economic impact; and (2) any such communications on your part would have to
be limited to merely acknowledging your candidacy and stating that pursuant to the Ethics
Act, public officials and public employees are prohibited from engaging in communications
of a non - governmental nature using governmental equipment, facilities or time.
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.
IV. CONCLUSION:
A Township Secretary /Zoning Administrator is a public official /public employee
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January 23, 2007
Page 4
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. The use of government staff, time, equipment, facilities, or property
for non - governmental purposes — including business, personal, or political purposes —is
generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics
Act. Generally, Section 1103(a) of the Ethics Act would prohibit a Township
Secretary /Zoning Administrator from engaging in conversations regarding her candidacy
for public office during her Township work hours or while she is otherwise performing
duties for the Township or is present at the Township office property. Section 1103(a) of
the Ethics Act would not prohibit a Township Secretary /Zoning Administrator from using
government equipment /facilities and time on a very limited basis to reply to unsolicited
questions regarding her candidacy for public office under the following conditions: (1) the
use of government equipment /facilities and time for non - governmental purposes would
have to be so strictly limited as to have a de minimis economic impact; and (2) any such
communications on the part of the Township Secretary /Zoning Administrator would have to
be limited to merely acknowledging her candidacy and stating that pursuant to the Ethics
Act, public officials and public employees are prohibited from engaging in communications
of a non - governmental nature using governmental equipment, facilities or time.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair