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HomeMy WebLinkAbout89-584 GrimesMr. Kenneth L. Grimes P.O. Box 215 Strausstown, PA 19559 Dear Mr. Grimes: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 17, 1989 89 -584 Re: Conflict, Supervisor, Voting, Franchise, Cable TV, Installation of Reception Tower on Supervisors Land for Free Cable Service and Rental. This responds to your letter of October 17, 1989 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor from voting upon a motion to grant a franchise to cable TV company when that company seeks to install a reception tower on the supervisors land in return for free cable and a yearly rental fee. Facts: You are a supervisor on a three member board in Upper Tulpehocken Township, Berks County, which is in the process of granting two cable TV franchises to two different cable companies, provided the applications meet township requirements. One of the cable companies has discussed with you the possibility of renting a portion of your property for the installation of a reception tower for the cable. If such were to occur, you believe that you would have a conflict in voting as to their franchise. Another supervisor on the board has stated: "I don't understand this cable TV business and it was never explained to me and I won't vote for it either." You note that the board has had discussions on this issue for several months with both cable TV companies, the solicitor and a neighboring township wherein any questions could have been posed and answered. You seek advice from this Commission as to whether you may vote on a motion and still rent the acre of land to the cable company which is offering to supply you with free cable and a rental fee of $150 per year. You understand that the cost of cable to a resident would be approximately $30 per month. Many township residents are interested in receiving the cable TV since the area Mr. Kenneth L. Grimes Page 2 is very rural and other neighboring municipalities either have or will have cable TV in the very near future. Discussion: As a supervisor for Upper Tulpehocken Township, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of that law. 65 P.S. $402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public Mr. Kenneth L. Grimes Page 3 official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Section 3(j) of the Ethics Law provides: Section 3. Restricted activities. (j) 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. In applying the above quoted provisions of Section 3(a) to the instant matter, it is clear that you would have a conflict if you were to vote as to the one cable company which seeks to install a reception tower on your land in return for free cable service and a yearly rental. In that case, you would be using the authority of your office through voting to award the franchise to that particular cable company. Your action would result in a private pecuniary benefit to yourself which would consist of the free cable service and yearly rental fee of $150. Mr. Kenneth L. Grimes Page 4 Thus, you would have a conflict under Section 3(a) of the Ethics Law. You would have no conflict as to the other cable company who has not approached you assuming that the other company is not business with which you are associated as that term is defined under the Ethics Law. Because of your conflict under Section 3(a) of the Ethics Law, Section 3(j) would require you to abstain from voting and publicly announce and disclose the nature of your interest as a public record in a written memorandum filed with the secretary responsible for recording the minutes. However, it is noted that Upper Tulpehocken has a three member board of supervisors. Section 3(j) of the Ethics Law provides that where there is a three member board and one member abstains from voting and the remaining two members cast apposing votes, then the member who has abstained may be permitted to vote to break the tie if disclosure is made as provided above. Therefore, you are advised that you initially must abstain from voting on this issue and make the necessary disclosures as required by Section 3(j). If the remaining two supervisors cast opposing votes, then you may proceed to vote to break the tie provided you observe the disclosure requirements of Section 3(j) noted above. In addition, you are reminded that the "free" cable and yearly rental constitute income which would have to be reported on your Statement of Financial Interests if the income threshold is met. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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. Conclusion: As a supervisor for Upper Tulpehocken Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law you have a conflict in voting on the award of a franchise to a cable TV company which has offered to install a reception tower on your land in return for free cable service and a yearly rental. Section 3(a) would preclude you from voting and Section 3(j) would require you to publicly announce and disclose the nature of your interest in a written memorandum filed with the secretary recording the minutes. However, in the event that the two remaining board members cast opposing votes on the award of the cable TV franchise, Section 3(j) in that instance would allow you vote to break the tie provided you comply with the disclosure requirements of Section 3(j) of the Ethics Law. Lastly, the Mr. Kenneth L. Grimes Page 5 propriety of the proposed conduct has only been addressed under the Ethics Law. 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S' cerely, Vincent Dopko, Chief Counsel