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HomeMy WebLinkAbout82-523 RaudenbushCharles Raudenbush, Jr. 65 Lillian Street Feasterville, PA 19047 RE: Voting, Catering Business Dear Mr. Raudenbush: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 2, 1982 ADVICE OF COUNSEL 82 -523 This responds to your communication of February 9, 1982 in which you requested advice from the State Ethics Commission. Issue: You request advice as to the propriety of voting on certain matters in your capacity as Supervisor in Lower Southampton Township. Facts: You currently serve as an elected Supervisor in Lower Southampton Township, Bucks County. At the meeting of the Supervisors of May 7, 1981, the Zoning Officer brought to the attention of the Board a use in occupancy application presented by Beth Chaim Congregation. This application was for a proposed club use in a commercial zone. It should be noted that a club is permitted in a commercial zone under the zoning ordinances of Lower Southampton Township. The proposed use would include using the premises for bingo operations. As a Supervisor, you moved to approve this proposed club (bingo) use. The Supervisors voted unanimously to approve this use. From May, 1981 until November, 1981 you had no contact with any bingo organization or any one involved in running bingo operations. In November, 1981 two friends of yours (Larry Levine and Maurice Novoseller) approached you about forming a catering business. In fact, some time prior to November, 1981 Mr. Levine and Mr. Novoseller had approached Dover Investments to discuss the possibility of providing food concessions (catering) to bingo operations. It should be noted that Dover Investments leases the hall to operate the bingos for charity, including the one noted above. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles Raudenbu,, Jr. March 2, 1982 Page 2 However, it was not until November, 1981 that your friends approached you about forming the catering business and at that time the concession arrangement with Dover Investments was an "accomplished fact." In December, 1981 a Corporation known as Buck Hall Gourmet Caterers Incor- porated was formed. You are one - third owner of this Corporation. This Corporation now provides catering and concession services to the bingo club noted above and this began on February 4, 1982. It must be noted that in May, 1981 when you voted to approve the use and occupancy application for the proposed club (bingo) outlined above, you were not then involved in the catering business, you had not discussed becoming involved in the catering business and had not even contem- plated in being involved in such a business which would serve the bingo operations in question. Discussion: There is no dispute or doubt that as a Township Supervisor you are a "public official" as that term is defined in the Ethics Act. As such your conduct must conform to the requirements of the Ethics Act. Thus, we must review the pertinent provisions of the Ethics Act. The most perti- nent provisions to be reviewed in answering the question which you present are Sections 3(a) and 3(b) of the Ethics Act. See 65 P.S. 403(a) and (b). These Sections provide that no public official may use his public office or confidential information received through public office to obtain financial gain for himself other than the compensation provided by law. In addition, these Sections prohibit a public official from receiving any thing of value, including the promise of future employment, on the understanding, that his official conduct would be influenced thereby. Under the circumstances you present we do not find any indication that you have used your public office as a Town- ship Superv-io o obtain work through Buck Hall Gourmet Catering Incorporated in the bingo operations outlined. Likewise, there is no indication that the vote undertaken in May, 1981 was cast, on your part, as a result of any promise of future employment as a caterer. Thus, there is no indi- cation that the vote which you cast in May, 1981 and your subsequent involvement in the catering business is in vio- lation of the Ethics Act. Charles Raudenbusc Jr. March 2, 1982 Page 3 It is perhaps instructive to review the main opinion that the Commission has issued in the area of what would constitute an appearance of an impropriety in a situation similar to yours. The case is Sowers, 80 -050. In that case the Commission was reviewing the situation where a Township Supervisor sought to obtain grading work from a developer whose plans would be subject to the review of that Township Supervisor. While the Commission concluded as was discussed above that the developer in question could not attempt to influence the vote of the Supervisor on his project by holding out the promise of future employment, the Commission did address other areas of possible conflict in relation to the Supervisor serving as sub - contractor of the developer. They concluded that the question of whether or not the Supervisor could vote on the approval or disapproval of the developers plans was to be answered depending on the factual circumstances and actual and temporal relationship between the individual Supervisor and the developer. For example, the Commission concluded that if the Supervisor knew at the time of his vote that he had been or could legitimately expect to be asked to do work for the developer or that he would offer his services to the developer, then the Super- visor should refrain from voting on the developer's project. The Commission concluded that a "legitimate expectation" of work could arise from many factors: The fact that the Supervisor and developer had often worked together in the past or the fact that the Supervisor owns the only grader in town that the developer could use in completion of his project, for example. However, if the Supervisor had not been hired and had no legitimate expectation of being hired by .the developer or was not offering his services to the developer, the Supervisor could under the Commission's opinion, legitimately vote on the developer's project. This latter circumstance appears to be the one most closely related to your situation. You do not appear to have been hired or have had any legitimate expectation of being hired as the caterer for the project (bingo operation) in question. Likewise, the facts as you present them indicate that you had not offered your services or even been involved in the catering business prior to your vote on May 7, 1981. However, the Commission in the Sowers case also indi- cated that if the Supervisor had voted on a project and subsequently obtained employment or acquired a contract with the developer on whose project he had voted, this employment should be publicly disclosed. In addition, the Supervisor Charles Raudenbu( Jr. March 2, 1982 Page 4 should then refrain from voting on any matter subsequently arising regarding the project. If future matters, regarding the project (in your case the bingo operation, applications . for use permits, extensions, etc.) are presented to the Supervisors, you should make public disclosure of the employment (catering) relationship that you enjoy with the applicant if such exists. Such disclosure should be made at a public meeting and be made part of the minutes of that meeting. The Ethics Act was not designed to preclude public officials from engaging in business with the public in general. Thus, unless some peculiar circumstances or factual contexts arise which might be similar to that presented in the Sowers case, your operation of a catering business, in general, would not be restricted by the Ethics Act. Conclusion: As a public official (Supervisor) your conduct in relation to a catering business should be governed by the guidelines developed in the above discussion. Specifically, you must: 1. Not use your official position to obtain any catering business; 2. Not utilize confidential information gained in your official capacity to secure such catering business; 3. Refrain from voting on matters which would directly affect your catering business and which are presented by persons where you will seek or have been asked or can reasonably and legitimately anticipate being asked to perform catering services; 4. Refrain from voting on matters which would directly affect your catering business and which are presented by persons from whom you obtained /secured work where you as a Supervisor may be asked to vote on these matters which arise after you have obtained /secured such catering business; 5. Make public your relationship with the catering clients or acquired with catering clients and the reasons for your abstention as required by Numbers 3 and 4 immediately above. Charles Raudenbush`, J March 1, 1982 Page 5 Under the circumstances which you have presented neither the fact that you cast the vote in question in May, 1981 nor the fact that you presently are associated with Buck Hall Gourmet Catering represent conflicts under the Ethics Act. 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 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. SSC /rdp Sinc rely, arJU_ Sandra S. Ch istianson General Counsel