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HomeMy WebLinkAbout85-553 PhillipsDear Mr. Phillips: • STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 12, 1985 ADVICE OF COUNSEL Mr. James B. Phillips 85 -553 130 Downing Street Plymouth, PA 18651 Re: Borough Councilman; Designated as Official Borough Refuse Hauler This responds to your letter of April 10, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether you may be designated as an official borough refuse hauler by the borough council of which you are a member. Facts: You currently serve as a member of the borough council for Plymouth Borough, Pennsylvania. You also are the owner /operator of Phillips Fuels, a refuse collection company. You have indicated that the borough generally provides refuse collection services for the residents of the borough. This is an optional service and residents who participate in this program may purchase a sanitation sticker for thiry five (35 ) dollars per year. The residents who do not participate in this program must obtain the services of a private hauler. Generally, this is the service that Phillips Fuels provides. You currently charge customers thirty five (35) dollars per year. The borough contracts with a private company for its collection needs. You have also indicated that both you and the borough collector utilize the facilities of the West Side Landfill Authority for the purpose of dumping the collected refuse. The landfill charges for this service at a rate of $2.60, per resident for the boroughs use of the facility and $3.50 per cubic yard for private haulers. You indicate that the borough must pay for all borough residents even though many residents do not utilize the borough collection services. You indicate, that as a result, the borough pays the West Side Landfill Authority $18,072 per year. Mr. James Phillips June 12, 1985 Paye 2 Recently you have been approached to become an official borough hauler. You indicate that in this respect you would be designated as such by the borouyh council. As such, you would then be permitted to use the landfill at a rate of $2.60 per resident. You indicate that instead of paying the fee to the landfill you would pay it directly to the borough. You estimate that you would pay the borough approximately $7,200 per year in this respect. Under this proposal, the borough's current expenditure of $18,072 per year for dumping would be reduced to $10,872. You would not be entering into any contract with the borough and would receive no compensation in return for this designation. You would still serve as a private hauler, and thereby, collect your fees from the residents serviced. We must here note that by reducing your dumping fees you could be realizing an additional profit in your business. We have not calculated this profit but do make note of the above fact. Discussion: As a borough councilman you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402; Davis, 84 -012. As such, your conduct must conform to the requirements thereof. Generally, the Act provides in part as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within this provision of law you may not use your position to obtain financial gain other than compensation provided by law. Similarly, you may not:use any confidential information obtained in your position for similar purposes. In this situation even though the borough may realize a benefit from this situation, you, as a private businessman may also stand to acquire economic gain. As such, you may not as a borough councilman participate to any extent in the councils discussions and final decision in this matter. Sowers, 80 -050. We note in relation to this Section of the Act that the compensation of a borough councilman is fixed by law. 53 P.S. §46001. Generally, in this respect a councilman may not receive any additional compensation from the borough without violating Section 3(a). 53 P.S. §46104, Davis, 84 -012. Here, however, you will apparently be holding no other borough position and will be receiving no additional compensation from the borough. Mr. James Phillips June 12, 1985 Page 3 The State Ethics Commission may also address other possible areas of conflict pursuant to Section 3(d) of the Ethics Act. 65 P.S. §403(d). Within this provision, we note that the intent of the Act is based upon the concept that public office is a.public trust and the financial interests of a public official must not be in conflict with or present the appearance of a conflict with that trust. 65 P.S. §401. In the current situation, you as a private businessman would be receiving a "special" designation from the council on which you serve that could be of a financial benefit to you. Because this designation could specifcally benefit your private enterprise, an appearance of a conflict exists. This appearance is in part alleviated by following the guidelines set forth above. This appearance of a conflict may be further diminished if the plan to be adopted by the borough is offered to or made available to others who are similarly situated. In this way, you would avoid even the appearance of a conflict as the plan would not be unique to, or specifically related to you but would rather include others performing similar services in the borough. That is, the plan adopted by the borough should also provide that other private haulers, both currently operating in the borough as well as any who may operate in the future may also secure this official designation and the same financial arrangements. In addition to the foregoing, we suggest that all discussions, votes and the final plan adoption be completed through a public process. This is so in light of the fact that you will apparently be required to enter into some type of written argreement with the borough whereby you will be required to pay the borough $7200 per year. Section 3(c) of the Act requires any contract between a public official and the governmental body with which he is associated in excess of $500 to be awarded via an open and public process. While the argreement involved here may not technically be a contract, we believe that the open and public process should nevertheless be employed. Howard, 79 -044; Fields, 82 -006. This open and public process would include public notice of the meeting at which the plan will be discussed and voted upon. Sufficient time for a public response thereto. Public disclosure of the proposals and the details thereof and public disclosure of the final plan. Compliance with the above would not only comport with the requirements of 3(c) of the Act but would also . diminish the appearance of any potential conflict of interest. Also you, in year position as a councilman, should not participate in any borough matter relating to refuse collection as long as you are a designated hauler. This would include not only action relating to your own position but that relating to others as well. Toohey, 83 -003. Mr. James Phillips June 12, 1985 Page 4 The Ethics Act also provides that: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We make reference to this section of the law not to imply that there has been or will be any violation thereof, but rather to provide a complete response to your request. Finally, the Act provides: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). You may, at a later time, wish to seek the further advice of the State Ethics Commission in relation to the above provision. Conclusion: As a borough councilman, you are a public official as that term is d efined in the Ethics Act. As such, your conduct must conform to the requirements of the Act specifically as set forth above. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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. Mr. James Phillips June 12, 1985 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Sincerely, John . 0 7 no G eral Counsel