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HomeMy WebLinkAbout83-570 HeckerMr. Thomas R. Hecker Begley, Carlin & Mandio 120 Mill Street, P.O. Box 705 Bristol, Pennsylvania 19007 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 1, 1983 ADVICE OF COUNSEL RE: Township Supervisor; Cable Television; Section 3(b) Violation Dear Mr. Hecker: 83 -570 This responds to your letter of February 25, 1983, in which you, as Solicitor for Doylestown Township, Bucks County, requested advice from the State Ethics Commission. Issue: You ask whether any impropriety under the Ethics Act exists where a Township Supervisor is also employed by a cable television company which holds a contract with the Township. Facts: You are the Solicitor for Doylestown Township in Bucks County. Doylestown Township is currently party to an agreement dated January 20, 1981, with the Central Bucks Cable Associates (CBCA) whereby, CBCA provides cable television services throughout the municipality under a company known as Home -View. Recently, as of February 10, 1983, one of the Township Supervisors, Mr. Raymond Andre, accepted employment with Home -Vue as an Advertising Sales Manager. Mr. Andre has no ownership interest or options in the CBCA or Home -View, and he was not in office in 1981 when the CBCA contract with the Township became effective. Although Mr. Andre had spoken with Home -View regarding employment (Mr. Andre was unemployed due to cut -backs at his County job) sometime in Decmeber, 1982, you do not characterize these discussions as "negotiations." At a meeting of the Supervisors on February 1, 1983, Mr. Andre participated, along with the other Supervisors, in a decision which denied a competitor of Home -View the right to offer service in an area of the Townhsip served by Home -View. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Thomas R. Hecker July 1, 1983 Page 2 You state that Mr. Andre understands, and has publicly stated, that he will not participate in any decisions of the Board of Supervisors involving not only Home -View, but any other cable company that may have dealings with the Township in the future because of his employment with Home -View as of February 10, 1983. The Board, however, is concerned that potential questions of impropriety may arise, and you have, therefore, requested advice from the State Ethics Commission on their behalf. Discussion: The Pennsylvania State Ethics Act, 65 P.S. 401 et. seq. was enacted to insure the public that "the financial interests of holders or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust." As a Township Supervisor, Mr. Andre is a "public official" and as such, his conduct must conform to the requirements of the State Ethics Act. The Ethics Act, 65 P.S. 403(a), provides that: (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 403(a). Likewise, Section 3(b) states that: (b) Each candidate for public office shall file a statement of financial interests for the preceding calendar year with the commission prior to filing a petition to appear on the ballot for election as a public official. A petition to appear on the ballot shall not be accepted by an election official unless the petition includes an affidavit that the candidate has filed the required statement of financial interests with the commission. 65 P.S. 403(b). Mr. Thomas R. Hecker July 1, 1983 Page 3 Although Mr. Andre has no ownership interest in the Home -View Company which would trigger the Section 3(c) restrictions contained in the Act, see 65 P.S. 403(c), Home -View is, by definition, a "business" with which Mr. Andre is "associated" for the purposes of Sections 3(a) and (b). See definitions, 65 P.S. 402. In this regard, Mr. Andre could not use his public office as Township Supervisor to secure any financial gain whatsoever, for himself or Home -View. He must, as you stated above, abstain from participation in any matters which come before the Board dealing with Home -View or any other cable television companies, especially, where such matters deal with increase or decrease service area, revenue, etc. for Home -View. Also, with regard to Section 3(b), the Commission would like to emphasize the language, "person should offer or give to a public official, ... and no public officil ... shall solicit or accept, any thing of value, including ... promise of future employment based on any understanding that the ... official action ... of the public official ... would be influenced thereby." This provision not only applies to Mr. Andre as a public official, but also to Home -View as a "person." See definition of "person ", Section 2, 65 P.S. 402. In this regard, any participation on any matter before the Board regarding Home -View while Mr. Andre faced even the possibility of employment by Home -View would constitute a violation of Section 3(b) if the promise or possibility of future employment as a "thing of value" were offered as an inducement to influence his conduct on February 1 , 1983, or otherwise. The facts as you have presented them and by which we are bound in rendering this Advice do not indicate any such implication of Section 3(b) of the Ethics Act. In this light, note that Mr. Andre's activities as a Township Supervisor, in voting against allowing a competing cable company the right to offer services within the Township, we assume he was not negotiating or actually considering the possibility of employment with Home -View. Although the Ethics Act does not preclude a public official from engaging in_outside activities, it does require the official to abstain from participation as a public official on matters before his governmental body in which he has an interest, Such as negotiation or renegotiation of the cable TV contract. See Boyle, 80 -020. The reasons for such abstention should be disclosed, and should be made part of the public record. We make no ruling in the context of this Advice as to Mr. Andre's past actions, but direct his attention to the abstention requirements of the Ethics Act as to future conduct. Conclusion: Under the Ethics Act, there is no per se conflict of interest between Mr. Andre's holding the position of Township Supervisor and his employment with Home -View, so long as he conforms his conduct to the provisions of Sections 3(a) and 3(b) as discussed above. When any matter concerning Home -View or competing cable companies come before the Board of Supervisors, Mr. Andre must abstain from any participation in discussions, votes, etc., and disclose the reasons for his abstention, and make those reasons in the public record. Mr. Thomas R. Hecker July 1, 1983 Page 4 If all of the guidelines discussed above are adhered to, Mr. Andre will may serve as a Township Supervisor concurrently with his employment with Home -View without engaging in a conflict, or the appearance of a conflict, with the public interest. This Advice does not address the past conduct of any official but answers the question of simultaneous service specifically raised by your letter. 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. CW /rdp 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, 4u 1¼ Sandra S. C,fistianson General Counsel