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HomeMy WebLinkAbout90-522 GableMr. Thomas W. Gable 90 -522 103 W. Grove Street Taylor, PA 18517 Re: Conflict, Public Official /Employee, Borough Councilmember, Landfill, Voting, Employment by Another Corporation. Dear Mr. Gable: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 20, 1990 This responds to your letter of February 2, 1990 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 borough councilmember from voting on matters of a landfill operated by a corporation when he is employed by a another corporation, when both corporations have the same board chairman. Facts: You are currently a member of the Taylor Borough Council in Taylor, Pennsylvania, wherein a sanitary landfill known as Empire Landfill is located. The borough has a written contract with Empire whereby it receives a dollar for every ton of refuse that is discharged into the landfill. In 1987, as President of Council, you signed a contract for the Borough along with the Mayor and Borough Secretary which continues to the present. Periodically, the Borough discusses different situations pertaining to the landfill such as permit, or after hours or weekend work. The Chairman of the Board of Empire Sanitary Landfill is Mr. Carmen Danella who also serves as Chairman of the Board of Danelia Environmental Technologies, Inc. (DET). You started employment at DET on January 22, 1990 as a resource development customer service consultant. DET is a separate corporation from Empire Sanitary Landfill. You hold no office in DET and are only an employee. You inquire as to whether you would have a conflict as a Borough Councilmember regarding matters relating to Empire Sanitary Landfill. Discussion: As a Councilmember for Taylor Borough, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 61.1. Mr. Thomas W. Gable Page 2 Section 3(a) of the Ethics Law 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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In addition, Section 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 and no public official /employee shall solicit or accept any thing of monetary value based upon the Mr. Thomas W. Gable Page 3 understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although you would not be prohibited under Section 3(a) of the Ethics Law from engaging in an activity which would involve your employment with DET, you could not perform your private business using governmental facilities or personnel. Since the Empire Landfill is not a business with which you are associated as that term is defined under the Ethics Law, you would not be restricted from participating or voting on matters relating to the landfill. It is expressly assumed that you are not a director, officer, owner, employee or have any financial interest in Empire Landfill. However, regarding DET, since you are an employee of that company, you would be restricted under Section 3(a) of the Ethics Law from voting or participating in any matter regarding that company which comes before Borough Council. Therefore, if any matter involving DET comes before Borough Council, you could not participate or vote and you would have to publicly disclose your interest as well as file a written memorandum to that effect pursuant to Section 3(j) of the Ethics Law. 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 Law. Conclusion: As a Councilmember for Taylor Borough, you are a public official subject to the provisions of the Ethics Law. Based upon the facts and circumstances above, Section 3(a) of the Ethics Law would not restrict you from voting or participating on matters of Empire Landfill since that is not a business with which you are associated as that term is defined under the Ethics Law. However, you could not participate or vote on any matters involving Danella Environmental Technologies,of which you are an employee, that would come before Borough Council. In addition, you would have to publicly announce your abstention as well as file a written memorandum to that effect with the person recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Thomas W. Gable Page 4 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. such. This letter is a public record and will be made available as 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. Sincerely, r) Vincent J. Dopko, Chief Counsel