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HomeMy WebLinkAbout81-653 ShirkKenelm L. Shirk, III, Esq. P.O. Box 1552 Lancaster, PA 17603 Mailin Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 29, 1981 ADVICE OF COUNSEL RE: Township Supervisor, Excavating Contractor Dear Mr. Shirk, 81 -653 This responds to your letter of November 19, 1981, in which you requested an opinion from the Ethics Commission. Issue: You asked for advice as to the conduct of a township supervisor who is also the president of an excavating company. Facts: You informed us that the president and principal owner of an excavating company has been elected supervisor of a second class township. The excavating company installs sewage seepage beds, sewer mains and water mains, as well as general excavation and construction work. This work is performed subject to permits issued by the local board of Supervisors. The company may also be directly or indirectly benefitted by zoning changes. Zoning appeals are taken to the Board of Supervisors. The Supervisors also have authority to hire, fire and discharge the zoning officer and the sewage enforcement officer. These officers initially issue zoning and sewage permits. Beyond these duties, the Supervisors award contracts for municipal construction. Discussion: An elected township supervisor is clearly a public official under the Ethics Act 65 P.S. §401 et seq. The term "public official" encompasses elected officials in the political subdivisions of the Commonwealth. 65 P.S. §402. Accordingly, the township supervisor must follow the restrictions the Ethics Act places on his conduct. Section 3(a) of the Act provides that no public official shall use his office or confidential information received through holding public office to obtain financial gain for himself or a business with which he is associated. 65 P.S. §403(a). The Supervisor cannot use his office or any confi- dential information received as Supervisor to get work as a building and excavation contractor to obtain permits, etc. It State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Kenelm L. Shirk, III, Esq. December 29, 1981 Page 2 would be a prohibited use of office if the Supervisor were to participate in discussions on or vote to appoint an officer who will inspect the Supervisor's work. The Supervisor should abstain from voting on the appointment of the sewage enforcement officer and place the reason for his abstention on the public record. The potential for abuse in a Supervisor appointing the official who will inspect work done by the Supervisor's business is obvious. When the Supervisor appoints the zoning officer there is also a potential for abuse of office. The zoning officer initially issues permits,for example, for a develop- ment. The Supervisor may construct sewer and water mains for a development. The Supervisor should, in order to•avoid the appearance of a conflict of interest, abstain from voting on the appointment of the zoning officer and place the reason for his abstention on the public record. In the alternative, if the Supervisor votes to appoint the zoning officer, that officer should not inspect lines, ditches, buildings or other items constructed by the Supervisor. Simmons, 79 -056; Hemsley, 80 -034 and Sowers, 80 -050. The Supervisor must also realize that he cannot accept anything of value, including a promise of future employment, based on any understanding that his official acts would be influenced thereby. 65 P.S. §403(b). This question may arise if the Supervisor must vote on a subdivision request zoning appeal brought by a developer. If the Supervisor knows at the time of his vote that he has been or can reasonably expect to be asked to work on the developer's project, he should refrain from voting on the matter and explain, on the record, his reasons for doing so. On the other hand, if the Supervisor has not been hired and has no expectation of being asked to work on the project, he can vote on the matter. Sowers, supra. (Copy attached). It may happen that the Supervisor will vote on a project and only later be employed by a developer. The Supervisor should if this situation arises, disclose this employment publicly and refrain from voting on any matter subsequently arising out of the project. Public disclosure of employment by the developer should be made at the next public meeting of the Board of Supervisors and should be part of the minutes of the meeting. Sowers, 80 -050. Finally, the Act limits the Supervisor's ability to contract with the Township. Section 3(c) states that no public official, member of his immediate family or business in which the official is a director, officer or owner of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at more than $500 with a govern- mental body unless the contract is awarded in an open and public process. 65 P.S. §403(c). If the Supervisor and the Township enter into a construction contract valued at greater than $500, it must be awarded in a process allowing for: Kenelm L. Shirk, III, Esq. December 29, 1981 Page 3 (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Howard, 79 -044 Conclusion: A Township Supervisor is a public official subject to the Ethics Act. The Supervisor may not use his office or confidential information received through holding public office to obtain work as a building and excavation contractor. The Supervisor cannot vote for a lower official (zoning officer, sewer inspector, etc.) who will inspect the work done by the Supervisor's construction company or who will issue permits to the Supervisor's business. Alternatively, if the supervisor so situated votes on an appointment, his work should not be inspected by his appointee. The Supervisor cannot accept anything of value, including a promise of future employment as a contractor, to influence his official acts. If, at the time of his vote the Supervisor knows or can reasonably expect to do contracting /sewage work for a developer, he must not vote on the developer's plans or requests and place the reason for abstaining on the public record. Without such expectation of receiving a contract the Supervisor may vote on a project. If the Supervisor is employed after a vote on a plan, request or project he must: (1) disclose his employment at the next public meeting of the supervisors; and (2) make disclosure part of the minutes of the meeting; and (3) refrain from subsequent votes on the plan, request or project. Should the Supervisor and the Township wish to enter into a contract valued at more than $500, it must be awarded in an open and public process including: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. 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. Kenelm L. Shirk, III, Esq. December 29, 1981 Page 4 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Attachment Si cerely, Sandra S. istianson General C. nsel