Berks County Bar Association The Berks Barrister Spring 2019 - 22

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Court Rulings Test Assumptions
Continued from page 21
Sivick v. State Ethics Commission is an illustration and a
cautionary tale that even advocating for a policy change, which
allows a benefit to a family member, is sufficient to lead to liability.
To do that, and/or engage in acts which lead directly to a family
member receiving a benefit (e.g., a contract or, as in this case,
public employment), are all considered to be conflicts of interest.
Abstention from voting does not repair the conflict or place the
official in a safe harbor position. John P. Sivick was a Township
Supervisor and Public Works Director for Lehman Township,
Pike County. Sivick made it clear to the Board of Supervisors that
he wanted to have his son hired as a road employee for the
Township. The Township, however, had a policy in place against
a family member supervising another family member. Sivick
worked with the Board on revisions to the employee handbook to
eliminate the anti-nepotism policy, but abstained from the vote on
the policy change, which took place at the January organization
meeting, on advice of the Township Solicitor. This was in January.
In March of that same year, Sivick registered his son, not yet a
Township employee, for training being attended by Township road
employees, and reimbursed the Township for the training ($50.00).
Then, in June of that year, Sivick lobbied the other Board members
to have his son hired, and the son was in fact hired (although there
is no record in the minutes of the vote). Sivick's son worked for
the Township from June 2013 until July 2016. During this time,
Sivick reviewed and approved his son's time sheets, and Sivick's son
realized approximately $90,000 in wages.
Upon receiving a complaint of violations by Sivick, the Ethics
Commission investigated. It found that Sivick violated the Ethics
Act by first, actively lobbying for the policy change that allowed
the hiring; second, when he "discussed, recommended, lobbied,
influenced, or sought the support of the Board to effectuate the
hiring of his son as a Township employee"; and when he "verified
Township records enabling and/or otherwise directing the
payment of salary/wage to his son from public monies." Sivick was
ordered to pay restitution of $30,000, which was deemed to be the
benefit received.
Sivick appealed to the Commonwealth Court, which upheld
the Ethics Commission's findings. It found that the actions of
encouraging a change in policy, which would have precluded
the hiring of an immediate family member, then actively taking
part in the hiring, then supervising his son and approving his
compensation all violated Ethics Act provisions against use of
public office for private pecuniary gain. That pecuniary gain
was the son's salary, and it was irrelevant that Sivick received
no personal benefit. Benefit to a family member as defined in
the Ethics Act, and which includes a child, spouse, or sibling, is
deemed private pecuniary benefit. The restitution could also not
be challenged. Sivick believed the proper party to receive it if it
had to be paid was the Township, since in his view, if there was a
loss sustained, it was by the Township, not the Commonwealth.
22 | Berks Barrister

The Court found no standing to challenge the recipient of the
restitution. The "take-away" from Sivick is that abstention from
voting is insufficient to prevent being found liable of conflicts
of interest. Not making money as the result of a decision does
not mean there was no private gain. An official should stay out
of all discussions of policies and decisions affecting the official,
and his or her family or business interests. The official needs to
"channel" the "Cone of Silence" in the 1960s series "Get Smart,"
and maintain separation from all discussions of transactions or
decisions which would benefit not only himself or herself directly,
but also indirectly through family.

Municipal Liability: Don't assume that because
there is no one in the driver's seat that the vehicle isn't
being "operated."
Balantine v. Chester Water Authority, 191 A.3d 799 (Pa., August
21, 2018).

This is a case on municipal liability and the reach of the term
"operation of a motor vehicle," which is an exception from the
usual rule of immunity under the Political Subdivision Tort
Claims Act, 42 Pa.C.S.A. ยง 8542(b)(i). In this case Edwin Omar
Medina-Flores was killed on Aug. 15, 2012, while he was working
in a 4' x 4' ditch in the City of Chester on a project for the Chester
City Water Authority (CWA). The accident occurred when
CWA inspector Charles Mathues parked his truck on the side of
the road 10 to 15 feet from the ditch, activated flashing hazard
lights, and exited the vehicle, which was running. The truck was
parked at least partially in the road when it was hit from behind by
another vehicle, and the CWA vehicle was pushed onto MedinaFlores, killing him. Medina-Flores' widow, Victoria Balentine,
filed a complaint in the Delaware County Court of Common
Pleas in 2013 against CWA and Mathues, as well as the driver
and owner of the striking vehicle. The Delaware County Court
granted CWA's and Mathues' motion for summary judgment,
finding Balentine's claims barred by immunity under the Political
Subdivision Tort Claims Act. Balentine removed the driver and
owner of the striking vehicle as defendants and appealed the
decision to Commonwealth Court, which affirmed the decision
of the lower court and finding that the CWA vehicle was not "in
operation" at the time of the accident as a matter of law because it
was not "in motion." The decision, by Judge Covey, noted that no
Pennsylvania case previously addressed whether the "involuntary
movement" of a vehicle constituted operation for the purposes of
immunity under the Political Subdivision Tort Claims Act.
Balantine sought certiorari from the Pennsylvania Supreme
Court. The Petition was granted to consider whether the
Commonwealth Court erred in holding that the involuntary
moving of a vehicle does not constitute "operation of a motor
vehicle" for purposes of the vehicle liability exception to


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Berks County Bar Association The Berks Barrister Spring 2019

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