HomeMy WebLinkAbout08-563 LAMONDMichael W. Lamond, Jr.
829 Philadelphia Ave.
Warrington, PA 18976
Dear Mr. Lamond:
ADVICE OF COUNSEL
July 14, 2008
08 -563
This responds to your letter dated May 28, 2008 (postmarked June 10, 2008, and
received June 13, 2008), by which you requested an advisory from the Pennsylvania
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 a Township
Supervisor with regard to participating in matters involving a proposed development,
when: (1) the Township Supervisor is a party to ongoing litigation involving the flooding
of his home; (2) the Township Supervisor states that he and others initiated the litigation
as a result of finding "inconsistencies" with a prior development that was built in 1998
and 1999; and (3) the Township Supervisor states that information from the discovery
stage of the litigation indicates that the engineer working on the proposed development
might have been responsible for alleged mistakes made on the storm management
system relating to the prior development.
Facts: As a Supervisor for Warrington Township ( "Township "), located in Bucks
ounty, Pennsylvania, you request an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You were elected to office in 2005 and began serving as a Township Supervisor
in 2006. Your term expires in 2012. You serve as the Assistant Secretary of the
Township Board of Supervisors.
You state that in 1999 and in 2001, your home was flooded by floodwater from
the Little Neshaminy Creek. As a result of the flooding, you and other individuals
initiated litigation (hereinafter, the "Litigation "), which is ongoing. The submitted facts do
not identify any of the parties to the Litigation except you.
You state that you and others initiated the Litigation as a result of finding
"inconsistencies" with a prior development that was built in 1998 and 1999. You further
state that information from the discovery stage of the Litigation indicates that the
engineer (hereinafter, the "Engineer ") that is working on a proposed development
Lamond, 08 -563
July 14, 2008
Page 2
coming before the Township Board of Supervisors might have been responsible for
alleged mistakes made on the storm management system relating to the prior
development.
Noting the experience you have gained in issues related to flooding, along with
the close proximity of the Little Neshaminy Creek, you state that you feel the need to
represent the residents of the Township to the best of your ability, but as honestly and
openly as possible.
Based upon the submitted facts, you request advice as to whether, pursuant to
the Ethics Act, you would be permitted to participate as a Township Supervisor in
matters involving the aforesaid proposed development.
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.
As a Township Supervisor for Warrington Township, you are a public official
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
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.
Lamond, 08 -563
July 14, 2008
Page 3
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.
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, a 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.
In applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
When a public official is involved in litigation, matters pertaining to or affecting the
litigation or an adverse party to the litigation generally present a conflict of interest for
the public official. See, DeLano, Opinion 88 -008; Golla, Opinion 88 -004; cf.,
McCullough, Advice 07 -534; Hiscott, Advices 06 -517 and 06- 517 -S.
In the instant matter, the submitted facts do not indicate whether the Engineer is
a party or could become a party to the current Litigation or any related litigation that
could financially impact you.
Lamond, 08 -563
July 14, 2008
Page 4
Based upon the limited submitted facts, you are advised as follows. For as long
as the Engineer would be a party or could become a party to the current Litigation or
any related litigation that could financially impact you, you would generally have a
conflict of interest in your public capacity in matters pertaining to the Engineer, including
the aforesaid proposed development that is coming before the Township Board of
Supervisors.
In each instance of a conflict of interest, you would be required to abstain from
participation and, in each instance of a voting conflict, to abstain and fully satisfy the
disclosure requirements of Section 1103(j) of the Ethics Act.
The ropriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Second Class Township
Code or case law pertaining to bias.
Conclusion: As a Supervisor for Warrington Township ( "Township "), located in Bucks
County, Pennsylvania, 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. In your
capacity as a Township Supervisor, you would generally have a conflict of interest in
matters that would financially impact you. Based upon the submitted facts that: (1) you
are a party to ongoing litigation involving the flooding of your home (hereinafter, the
"Litigation"); (2) you state that you and others initiated the Litigation as a result of finding
"inconsistencies" with a prior development that was built in 1998 and 1999; and (3) you
state that information from the discovery stage of the Litigation indicates that the
engineer (hereinafter, the "Engineer ") that is working on a proposed development
coming before the Township Board of Supervisors might have been responsible for
alleged mistakes made on the storm management system relating to the prior
development, you are advised as follows. For as long as the Engineer would be a party
or could become a party to the current Litigation or any related litigation that could
financially impact you, you would generally have a conflict of interest in your public
capacity in matters pertaining to the Engineer, including the aforesaid proposed
development that is coming before the Township Board of Supervisors. In each
instance of a conflict of interest, you would be required to abstain from participation and,
in each instance of a voting conflict, to abstain and fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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,
Lamond, 08 -563
July 14, 2008
Page 5
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