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HomeMy WebLinkAbout90-536 EshelmanDear Mr. Eshelman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 12, 1990 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 90 -536 Mr. Kenneth J. Eshelman R.D. #2, Box 91 Wrightsville, PA 17368 Re: Conflict, Public Official, Second Class Township Supervisor, Involvement with Businesses. This responds to your letter of March 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 second class township supervisor as to participating or voting on matters before the township which - relate to various companies with which the supervisor has done business. Facts: On January 1, 1990 you took office as an elected Supervisor in Lower Windsor Township, York County. You own and operate a service station which is an auto repair garage in the Borough of East Prospect, Pennsylvania for the last fifteen years. Lower Windsor Township geographically surrounds East Prospect Borough. You have done and currently do business with various companies located in Lower Windsor Township. Some of the businessmen with whom you have done business have submitted land development plans in the past and may have plans to expand in the future. You seek clarification as to your role as supervisor in acting in matters affecting these businessmen. Discussion: As a supervisor for Lower Windsor Township, you are a public official as that term is defined in the Ethics Law. Hence, you are subject to the provisions of that law. 65 P.S. 11402; 51 Pa. Code 111.1. Section 3(a) of the Ethics Law provides: Mr. Kenneth J. Eshelman Page 2 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public Mr. Kenneth J. Eshelman Page 3 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 Section 3(a) of the Ethics Law quoted above to the instant matter, that section of law would prohibit you from using the authority of office or confidential information for a private pecuniary benefit for yourself, a member of your immediate family or business with which you are associated. As to the companies that you have done business, the focus of our inquiry must be as to whether you have any financial interests in those businesses. The fact that you may have had business dealings in the past with these companies does not in of itself create a conflict. Derr, Advice 90 -513. However, if you are "associated" with any of these companies as that term is defined under the Ethics Law, then you could not participate or vote in any matter involving those businesses that would come before the township. Further, Section 3(j) of the Ethics Law would require you to publicly note your abstention as well as file a written memorandum to that effect with the secretary recording the minutes. 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. Specifically not addressed in this advice is the applicability of the Second Class Township Code. Conclusion: As a supervisor for Windsor Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, the mere fact that you have had business dealings with certain companies does not in and of itself preclude you from participating in matters that would come before the township involving those companies. However, in the event that you are "associated" with those businesses as that term is defined under the Ethics Law, then you would be precluded from participating or voting in such matters. In addition, the requirements of Section 3(j) of the Ethics Law noted above would have to be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Kenneth J. Eshelman 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. 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 M2.12. Sincerely, fL .N t.AA'N Vincent J. Dopko, Chief Counsel