HomeMy WebLinkAbout07-555 CARTERV. Merril Carter
1221 Robert Fulton Highway
Quarryville, PA 17566
Dear Mr. Carter:
ADVICE OF COUNSEL
July 9, 2007
07 -555
This responds to your letter received June 7, 2007, 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 prohibitions or restrictions upon the chairman
of a township board of supervisors with regard to entering into a contract with the
township for the sale of real estate owned by the chairman and his wife.
Facts: As a Member and Chairman of the Board of Supervisors of East Drumore
Township ( "Township "), you request an advisory from the State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You have served as a Township Supervisor since January 1, 1992. In 2000, you
were appointed Chairman of the Township Board of Supervisors. You also work full -
time for the Township as a laborer and equipment operator.
You state that the Township has outgrown the present facility that is used for
meetings and elections. The Township has received letters from a Township committee
and the Township Planning Commission expressing support for expansion of the
Township facility. Additionally, Township residents have expressed interest in some
form of recreation or walking trail. You have submitted copies of minutes from Township
meetings held on December 7, 2006, December 30, 2006, April 5, 2007, and May 3,
2007.
You and your wife own a 42 -acre farm in the Township ( "the Property"), which
you purchased in 1978. The Property includes a 20 -acre tract ( "Tract ") that adjoins
Township land on the north. The Township land and the Tract are situated between
Route 222 and Church Road. You have submitted maps depicting the Property and
Church Road.
You state that you and your wife have had opportunities to sell or develop parts
of the Property, but you want it kept for open space and Township use. You are
Carter, 07 -555
July 9, 2007
Page 2
considering selling land to the Township. It is not clear from your advisory request letter
whether you are considering selling the Property as a whole or only the Tract.
You state that the other two Township Supervisors would conduct the sale, that
you would abstain from voting on the sale, and that the purchase would be completed in
accordance with the Second Class Township Code.
You ask whether, pursuant to the Ethics Act, you would be permitted to sell land
(the Property or Tract) to the Township.
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 Member and Chairman of the Township Board of Supervisors, you are a
public official as that term is defined in the Ethics Act, and hence you are 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
Carter, 07 -555
July 9, 2007
Page 3
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(a), (j).
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.
"Immediate family." A parent, spouse, child, brother
or sister.
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.
The use of authority of office is not limited merely to voting, but extends to any
use of authority of office including, but not limited to, discussing, conferring with others,
and lobbying for a particular result. Juliante, Order 809.
In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the
public official /public 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. 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.
Carter, 07 -555
July 9, 2007
Page 4
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
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).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
The term "political subdivision" is defined in the Ethics Act to include townships:
§ 1102. Definitions
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
65 Pa.C.S. § 1102.
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
Carter, 07 -555
July 9, 2007
Page 5
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 /public
employee may not have any supervisory or overall responsibility as to the
implementation or administration of the contract with the governmental body.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that pursuant to Section 1103(a) of the Ethics Act, you would generally have a
conflict of interest in matters that would financially impact you or your spouse. Section
1103(a) of the Ethics Act would not prohibit you from selling the Property or Tract to the
Township. However, pursuant to Section 1103(a) of the Ethics Act, you would
specifically have a conflict of interest as a Member or Chairman of the Township Board
of Supervisors in matters pertaining to the purchase or potential purchase of the
Property or Tract by the Township. You would also have a conflict of interest in matters
pertaining to any competitor properties considered by the Township. See, Pepper,
Opinion 87 -008. In each instance of a conflict of interest you would be required to
abstain fully from participation and to satisfy the disclosure requirements of Section
1103(j) of the Ethics Act.
Turning to Section 1103(f) of the Ethics Act, the requirements of Section 1103(f)
of the Ethics Act would have to be observed whenever applicable. You are advised that
an agreement or arrangement for the acquisition of the Property or Tract by the
Township would constitute a "contract" as that term is defined in the Ethics Act.
Therefore, if the purchase price of the land you and your wife would sell to the Township
would be $500 or more, the requirements of Section 1103(f) of the Ethics Act would
have to be observed.
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 Member and Chairman of the Board of Supervisors of East
Drumore Township ("Township"), you area ublic official subject to the provisions of the
Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq.
Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of
interest in matters before the Township Board of Supervisors that would financially
impact you or your spouse. You would specifically have a conflict of interest as a
Member or Chairman of the Township Board of Supervisors in matters pertaining to the
purchase or potential purchase by the Township of land owned by you and your spouse.
You would also have a conflict of interest in matters pertaining to any competitor
properties considered by the Township. In each instance of a conflict of interest, you
would be required to abstain fully from participation and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. The requirements of Section 1103(f)
of the Ethics Act would have to be observed whenever applicable. If the purchase price
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July 9, 2007
Page 6
of the land you and your wife would sell to the Township would be $500 or more, the
requirements of Section 1103(f) of the Ethics Act would have to be observed. 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,
Robin M. Hittie
Chief Counsel