HomeMy WebLinkAbout13-520 Bengel
ADVICE OF COUNSEL
April 12, 2013
Henry Bengel
P.O. Box 197
Tannersville, PA 18372
13-520
Dear Mr. Bengel:
This responds to your letter dated February 26, 2013, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq., an individual serving as a township supervisor would
have a conflict of interest with regard to participating in discussions or votes by the
township board of supervisors pertaining to an entity’s land development plans for
property located in the township, where the individual, as a non-incumbent candidate for
township supervisor, accepted approximately $6,500.00 in cash and in-kind campaign
contributions from the entity’s owners.
Facts:
As a Supervisor for Pocono Township (“Township”), you request an
advisory from the Pennsylvania State Ethics Commission based upon submitted facts
that may be fairly summarized as follows.
In 2011 you ran as a non-incumbent candidate for a six-year term of office as a
Township Supervisor, and you took office as a Township Supervisor in January 2012.
During your campaign for Township Supervisor, you received approximately $6,500.00
in cash and in-kind campaign contributions from Vincent and Charlie Lynn Trapasso
(“the Trapassos”).
The Trapassos own an entity named “Trap Enterprises.” On January 18, 2013,
Trap Enterprises filed land development plans with the Township for property located in
the Township. You state that during your campaign for Township Supervisor, you were
not aware of any pending plans for land development involving the Trapassos and there
were no discussions as to promises regarding any land development plans involving the
Trapassos.
Based upon the above submitted facts, you seek guidance as to whether you
would have a conflict of interest under the Ethics Act with respect to participating in
discussion(s) and/or vote(s) by the Township Board of Supervisors (“Board”) pertaining
to Trap Enterprises’ land development plans.
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
Bengel, 13-520
April 12, 2013
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 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.
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
Bengel, 13-520
April 12, 2013
Page 3
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, 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 conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), provide in part that no person shall offer or give to a public official/public
employee anything of monetary value and no public official/public employee shall solicit
or accept anything of monetary value based upon the understanding that the vote,
official action, or judgment of the public official/public employee would be influenced
thereby.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that your receipt of the aforesaid campaign contributions from the Trapassos at
a time when you were a non-incumbent candidate for Township Supervisor, and
therefore were not subject to Section 1103(a) of the Ethics Act, would not in and of itself
form the basis of a conflict of interest for you under the Ethics Act with regard to
participating in the Board’s discussion(s) and/or vote(s) on Trap Enterprises’ land
development plans. See, Wolfgang, Opinion 89-028; Confidential Opinion, 04-009.
Therefore, based upon the submitted facts, you are advised that absent some
basis for a conflict of interest such as a private pecuniary benefit to you, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated, Section 1103(a) of the Ethics Act would not prohibit you from
participating in the Board’s discussion(s) and/or vote(s) on Trap Enterprises’ land
development plans.
Finally, the fact that someone has made a contribution to a campaign for public
office does not per se create an “understanding” that would be prohibited by Section
1103(b)/(c) of the Ethics Act. Wolfgang, supra.
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.
Bengel, 13-520
April 12, 2013
Page 4
Conclusion:
As a Supervisor for Pocono Township (“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. Based upon the submitted facts that: (1) in
2011 you ran as a non-incumbent candidate for a six-year term of office as a Township
Supervisor, and you took office as a Township Supervisor in January 2012; (2) during
your campaign for Township Supervisor, you received approximately $6,500.00 in cash
and in-kind campaign contributions from Vincent and Charlie Lynn Trapasso (“the
Trapassos”); (3) the Trapassos own an entity named “Trap Enterprises”; (4) on January
18, 2013, Trap Enterprises filed land development plans with the Township for property
located in the Township; and (5) during your campaign for Township Supervisor, you
were not aware of any pending plans for land development involving the Trapassos and
there were no discussions as to promises regarding any land development plans
involving the Trapassos, you are advised as follows.
Your receipt of the aforesaid campaign contributions from the Trapassos at a
time when you were a non-incumbent candidate for Township Supervisor, and therefore
were not subject to Section 1103(a) of the Ethics Act, would not in and of itself form the
basis of a conflict of interest for you under the Ethics Act with regard to participating in
the Board’s discussion(s) and/or vote(s) on Trap Enterprises’ land development plans.
Absent some basis for a conflict of interest such as a private pecuniary benefit to you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you
from participating in the Board’s discussion(s) and/or vote(s) on Trap Enterprises’ land
development plans. The fact that someone has made a contribution to a campaign for
public office does not per se create an “understanding” that would be prohibited by
Section 1103(b)/(c) 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,
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