HomeMy WebLinkAbout90-523 ThompsonSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 20, 1990
Mr. Joseph Thompson 90 -523
615 Belmont Avenue
Southampton, PA 18966
Re: Conflict, Public Official, Immediate Family, Township
Supervisor, Son, Township Engineer.
Dear Mr. Thompson:
This responds to your letter of February 5, 1990, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any restrictions upon a second class township
supervisor from voting or participating for the appointment of a
firm with which his son is associated as township engineer.
Facts: As a supervisor in Upper Southampton Township, Bucks
County, you inquire as to the propriety of the possible
appointment of an engineering firm to the position of township
engineer when your son, who is a professional engineer, is
associated with that firm. You inquire as to whether it is
permissible for your son's firm to apply for the position of
township engineer when that appointment will be made by the
township board of supervisors. After referencing the Ethics Law,
you state that consideration for the position should be based
upon entitlement as to professional status without regard to the
possibility of a summary dismissal based upon considerations of
familial relationship. You reference various public criticism as
well as commentary by the media on this matter. Thereafter, you
note that a deadlock may occur on this matter and request advice
as to whether the Ethics Law would allow you to vote on the
appointment of your son's firm should a deadlock occur. You
raise concern because the vote you would cast in a deadlock
situation would be one for making the appointment. You indicate
that you want to carry out your duties in an ethical manner and
therefore seek an expeditious response to your inquiry.
Discussion: As a supervisor for Upper Southampton Township, you
Mr. Joseph Thompson
Page 2
are a public official as that term is defined under the Ethics
Law, and hence you are subject to the provisions of that law.
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 in the Ethics Law as
follows:
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.
"Immediate family." A parent, spouse,
child, brother or sister.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
Kr. Joseph Thompson
Page 3
director, officer, owner, employee or has a
financial interest.
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 and no public
official /employee shall solicit or accept any thing of monetary
value based upon the 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 provisions of the Ethics Law to the instant
matter, it is noted your son is in the familial relationship
delineated within the definition of "immediate family." Section
3(a) of the Ethics Law would prohibit you from voting or
participating for the appointment of the engineering firm which
employs your son and which is a business with which your son is
associated as that term is defined under the Ethics Law. Davis
Opinion 89 -012. Thus, if you were to participate or vote, such
action would be a use of the authority of office to obtain a
private pecuniary benefit to your son and the business with which
he is associated in contravention of the Ethics Law. Although
firm is not precluded from applying for position of township
engineer, you could not participate or vote for the firm's
appointment.
Section 3(j) of the Ethics Law requires public disclosure
prior to voting on the matter as well as disclosing same in a
written memorandum filed with the person responsible for
recording the minutes. In addition, Section 3(a) of the Ethics
Law would restrict you from casting negative votes against any
other engineering firms that would be competing for this
position. The Commission held in Pepper, Opinion 87 -008, that a
public official /employee was not only restricted from voting on a
matter which would inure to his own personal benefit or the
benefit of a member of his immediate family or business with
which he was associated but would also apply to a situation where
the public official /employee would cast negative votes against
other individuals who would be competing for that position in an
attempt to eliminate those competitors.
Section 3(j) of the Ethics Law provides:
Section 3. Restricted activities.
(j) Where voting conflicts are not
otherwise addressed by the Constitution of.
Mr. Joseph Thompson
Page 4
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 td 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 the event that your abstention results in a deadlock of
the Board on the matter of the appointment of the engineering
firm, then Section 3(j) in that instance would allow you to vote
and participate providing you publicly disclose your conflict as
well as file a written memorandum to that effect with the person
recording the minutes. If a deadlock occurs and if you comply
with the disclosure requirements of Section 3(j) noted above,
then in that instance you could proceed to participate and vote
regarding the appointment of the township engineer.
Conclusion: As a supervisor of Upper Southampton Township, you
are a public official subject to the provisions of the Ethics
Law. Section 3(a) of the Ethics Law would prohibit you from
participating or voting for your son's engineering firm for the
position of township engineer. In the event that a deadlock
occurs, you would be permitted to vote under Section 3(j) of the
Ethics Law provided the requirements as noted above are observed.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
Mr. Joseph Thompson
Page 5
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 othex 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.
Vincent J. Dopko,
Chief Counsel