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Home My WebLink About85-554 DownsSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 June 17, 1985 ADVICE OF COUNSEL Mr. David A. Downs Township of Buckingham P.O. Box 413 Buckingham, PA 18912 Re: Township Supervisor, Surveyor, Voting on Private Client Plans, Conflict of Interest 85 - 554 Dear Mr. Downs: This responds to your letter of May 15, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a township supervisor may participate in the consideration of proposals submitted by persons for whom he has provided private surveying services. Facts: You currently serve as the Chairman of the Board of Supervisors for Buckingham Township. You have so served for the past six years, In addition, thereto, you are a registered land surveyor. In this capacity, you provide services to clients who are seeking township approval for either land or subdivision development. You indicated that in relation to these clients, you act as either the sole professional involved or as a consultant. You indicate that prior to being reviewed by the board of supervisors, the plans must be reviewed by the township planning commission, the township engineer and the zoning officer. You are particularly concerned because as you indicate, the board of supervisors has on occassion, been divided on certain issues, Because it is a three (3) member board, you are concerned that one of your projects could fail to receive final approval, if you abstain from voting. You present the following questions for review and consideration by the State Ethics Commission. 1) Would it be considered a conflict to vote for approval for a project in which you were involved if it otherwise meets all criteri a. 2) If the Commission determines a conflict exists, what is the basis of this determination. Mr. David A. Downs June 17, 1985 Page 2 3) If the determination is that, as a general principle you should abstain, would the existence of a deadlocked board be considered an exception whereby you could cast a tie - breaking vote. Discussion: As a township supervisor, you are a public official as that term is defined in the State Ethics Act, and your conduct as such must, therefore, conform to the requirements of the State Ethics Act. 65 P.S. §401, et. seg.; Sowers, 80 -050. The Ethics Act provides, in part, that: 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). We have reviewed your specific question in the past and have determined that as a public official, you may not within the above provision of law, participate in a matter where you have a personal pecuniary interest. Dawson, 84 -513. As a township supervisor, you will be faced with a situation where the board of supervisors will be asked to review, consider, and approve proposals in which you have performed, private professional services for a fee. In such a situation, you must publicly disclose the extent of your involvement in the preparation of the plans that are being submitted to the municipality, following the planning commission's review for acceptance or rejection and, additionally, you must abstain from participating in review, recommendations and discussions regarding the municipality's action on such plans. Such disclosure should be made at a public meeting and should be incorporated in the minutes of that meeting. See Sowers, 80 -050. This conclusion derives not only from the aforecited provision of law but also from Section 3(d) of the Ethics Act, which allows the Commission to address other areas of possible conclict. 65 P.S. §403(d). Such a conflict is determined in light of the enumerated intent of the Act which is to insure that the financial interests of a public official do not conflict or appear to conflict with the public trust. 65 P.S. §401. Such a conflict arises where the public official serves or appears to serve two competing interests, such as a private client as well as the general public. Alfano, 80 -007. Mr. David A. Downs June 17, 1985 Page 3 Previous rulings of the Commission indicate that as a general rule, a public official or employee may not review, approve, or inspect or take any official action on a matter in which he might be interested as an individual. For example, the Commission concluded that a zoning officer who is also a developer could not issue permits to himself. Simmons, 79 -056. Similarly, the Commission has concluded that a developer who is an elected township supervisor could not inspect or approve his own work as a developer. See Sowers, supra. With respect to auditing, Commission rulings also indicate that an auditor may not audit the township books, where the spouse of the auditor serves as supervisor. Restivo, 80 -518 and Detweiler, 81 -648. The Commission has also determined, on a number of occasions, that municipal engineers could not review or participate in a matter involving a private client. Stillwagon, 84 -600. These determinations are based upon a history of judicial precedent that has set forth the general public policy that: It is well and wisely established principle of public policy in Pennsylvania that a public official may not use his official power to further his own interests. This is so no matter how beneficial or appropriate the proposal under consideration may be. Genkinger v. City of New Castle, 368 Pa 547, 84 A.2d 303. See also Warminster Township Appeal, 56 D &C 2d 99, (1971), (holding that any personal interest of a public officer creates a disqualification). With regard to whether you may vote on such a proposal if there is a deadlock between the other supervisors, this specific issue has been addressed by the Supreme Court of Pennsylvania in Reckner v. German Township School District, 341 Pa 375, 19 A.2d 402, (1941). It was there held that it is a well founded and long established public policy that one who has a direct personal interest in a matter under consideration by a representative public agency of which he is a member is disqualified from voting therein and if his vote is determinative, the action is void. Conclusion: As a public official serving as township supervisor, your conduct in relation to this public post and private employment should be governed by guidelines expressed above. Specifically, in your capacity as township supervisor, you must: 1. not use your official position to obtain any business in a private capacity as a surveyor; Mr. David A. Downs June 17, 1985 Page 4 2. not utilize con`idential information gained through your official po3ition as township supervisor; 3. refrain from particivting in discussions, review, recommendations, and vC:iing on matters which relate to clients you served as a private surveyor which are presented to the township pl ani i ng commission and the board of supervi :c;rs for review and approval; 4. make public your relationship to such private clients with respect to any plans or recommendations that may come before the township for final or further re°+i ei and approval; and 5. no review or approve in your capacity as township supervisor, on behalf of the township, any plans on which you or a business with which you are associated worked as a private supervisor. 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 mane available as such. Finally, if you disagree with this Advice or if yuu 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 John J. tino Gene Counsel