Loading...
HomeMy WebLinkAbout86-632 DeetzRichard E. neetz, Esquire 1111 North Fifth Street Stroudsburg, PA 18360 Mad,ng Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 necemher 9, 19R6 AfVICF (1F COUNSEL 86 -632 Re: Conflict of Interest, Township Supervisors, Voting on Matter Relating to Employer, Rule of Necessity near Mr. neetz_: This responds to your letter of November 14, 14R6, wherein you requested the advice of the State Ethics Commission. issue: whether any conflict of interest or prohibitions would arise under the State Ethics Act if township supervisors were to participate in a township decision regarding a developer which has employed two of the township supervisors as suh- contractors on a construction project. Facts: As the Solicitor to the Roard of Township Supervisors for Middle Smithfield Township, Monroe County, Pennsylvania, you have requested the advice of the State Ethics Commission in relation to the above issue. You advise that two of the three elected township supervisors have, in the past, heen employed as independent contractors hy a land owner in the township who has official applications pending hefore the Roard of Supervisors. One supervisor runs an excavating business and the other supervisor is a self - employed electrician. The land owner, in question, is starting some extensive developments in the township, and has hired two of the three supervisors, one as an excavator and the other as an electrician for particular jobs on an independent contractor hasis. You advise that both supervisors have publicly disclosed that they have been hired hy the land owner. You advise that the land owner has another application, which will require review and approval hefore the township hoard of supervisors. You do not indicate whether the application involved in that situation relates to the development in which the supervisors are involved privately. we will assume, for the purpose of this advice, therefore, that the application relates to another project and that the supervisors are not being asked to consider a matter in which they are specifically involved. You have requested the advice State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Richard E. Deetz, Esquire December 9, 1986 Page 2 of the State Ethics Commission in light of the fact that the township is governed by a three member board of supervisors and two of the board members will be potentially disqualified from acting in this situation. Discussion: Members of a township board of supervisors are clearly public officials as that term is defined in the State Ethics Act. 65 P.S. §402. As such, their conduct must conform to the requirements of the State Ethics Act. Sowers, 80 -050; Welz, 86 -001. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). In addition to the above provision of law, the Ethics Act authorizes the State Ethics Commission to address other areas of possible conflict. 65 P.S. §403(d). Such a conflict of interest would exist in a situation where a public official attempts to serve one or more interests that are adverse. See, Alfano, 80 -007. Generally, there is no doubt that public officials, including township supervisors, are precluded from participating in any matter in which they have a personnel pecuniary interest. See, Commonwealth v. Raudenbush, 249 Pa. 86, 99 A. 555, (1915); Eways v. Reading Parking Authority, 385 Pa. 592 124 A.2d 92, (1956); Reckner v. German Township, 341 Pa. 375, 19 A.2d 402, (1941). This Commission has, within the purview of the State Ethics Act, similarly determined that public officials may not act upon a matter in which they have a personal financial interest. Sowers, 80 -050; King, 85 -025. In the instant situation, we are confronted with the situation where a majority of the members of the township board of supervisors have had business dealings with the individual who now has presented an application to the township supervisors for review, consideration and ultimate decision. In similar situations, this Commission has, in the past, ruled that a township supervisor would be prohibited from participating in any matter involving an individual who has employed their services in a private capacity. See, Welz, 86 -001. The instant situation, however, is complicated by the fact that the majority of the board of township supervisors have been so employed by this individual and, as a result, the township board of supervisors would appear to be, under the above requirements of the Ethics Act, confronted with the situation where they would not be able to perform their duties as public officials and which would result in the particular developer not having a forum in which to present his proposal or application. Richard E. Deetz, Esquire fecemher 9, 1986 Page 3 Tn such a situation, this Commission has previously invoked the common law of Rule of Necessity in order that the governmental unit may properly perform its puhlic function. Ry invoking the Rule of Necessity, which is discussed below, the memhers of the hoard of supervisors will he ahle to follow certain precautions and guidelines in relation to township decisions regarding their development. The Commission's use of this particular rule was originally set forth in Hahalis, R3 -009. Perhaps the most succinct statement of the Rule of Necessity is found in Turner v. American Rar Association, 497 F. Supp. 451 (1975), where the Court dismissed action brought against members of the federal judiciary and others hy plaintiffs who claimed they had a constitutional right to have unlicensed lay counsel assist them in court proceedings. In its discussion, the Court noted, "there is a maxim of law to the effect that where all are disqualified, none are disqualified." Id. at 483, citing Evans v. Gore, 253 U.S. 245 (1920). The Court continued, stating "the theory supporting this maxim is that if disqualification operates so as to bar justice to the parties and no other trihunal is availahle, the disqualified judge or judges may, hy necessity, proceed to judgment." Id. at 483. From the very necessity of the case has grown the rule that disqualification will not he permitted to destroy the only trihunal with power in the premises. If the law provides for a suhstitution of personnel on hoard or court, or if another trihunal exists to which resort may he had, a disqualified member may not act. Rut when no such provision is made, the law cannot he nullified or the doors to justice harred because of prejudice or disqualification of a memher of a court a administrative trihunal. Id. at 357. in Kennett v. Levine, 59 Wash. 2d 212, 310 P.2d 244 (1957), the Court held that the Rule of Necessity applied where a puhlic body is given exclusive jurisdiction over a matter and no suhstitue trihunal is provided hy law. See also Lnughram v. F.T.f,, 143 F.2d 431 (C.f.A. 8th 1944), where only one trihunal is provided hy law, that trihunal must he permitted to act under the Rule of Necessity. It is important to note that the Rule of Necessity is entirely inapplicahle when there exists, as stated above, a method of providing a qualified trihunal, such as hy exclusion from the trihunal of disqualified memhers. See, Pyatt v. Mayor and Council, 9 N.J. 54R, 89 A.2d 1 (1952); appointing a different memhership, See, Smith v. Dept. of Registration, 412 I11. 332, 106 N.F.2d 722 (1952); counting only the votes of the qualified memhers, See, Thompson v. City of Long Reach, 41 Cal. 2d 235, 259 P.2d 649 Richard E. Deetz, Esquire December 9, 1986 Page 4 (1953); or resorting to another available tribunal, See, Tumey v. Ohio, 273 U.S. 510 (1927). For the purposes of this Opinion, the Commission assumes that none of the alternatives enumerated above exists by which the board may form a quorum or obtain a majority vote and to take official action, and we hold that the Rule of Necessity, under these appropriate circumstances, could apply to allow participation /voting by an otherwise disqualified official. In this light, we must discuss what constitutes a quorum, because for purposes of invoking the Rule of Necessity, a sufficient number of supervisors must be disqualified under the Ethics Act for the rule to apply. Unless otherwise specified under Pennsylvania and common law, a quorum of the board would be constituted by a majority if its members, that is at least four out of seven members, and official action could be taken by a positive vote of the majority of the quorum, for example, three out of four. See, DiGiacinto v. City of Allentown, 486 Pa. 436, 406 A.2d 520, 522 (1979). Unrestricted application of the Rule of Necessity, however, could result in a situation where all of the three of four members who constitute a quorum would normally be disaqualified while the members not normally disqualifed are not present. While such a result might generally be permissible, the Ethics Commission believes that in keeping with the letter and spirit of the Ethics Act, the votes of the normally disqualified members must be tempered by the vote or possible votes of members who have no conflict of interest and, therefore, are not disqualified with respect to subject matter. In this regard, the Commission believes that application of the Rule of Necessity must be limited to situations where obtaining a quorum is possible only when normally disqualified members are allowed to vote in addition to members not disqualified and who do not have a conflict of interest in the matter at hand. To illustrate, in the present situation in the board, two members of the board would constitute a quorum. Where two out of three members of the board would normally be disqualified from participating, the member without a conflict of interest must be part of those members constituting the voting quorum. This Rule of Necessity, of course, would be inapplicable if the board could obtain a votiny quorum of non - disqualified members. Thus, where there are board members who do not have a conflict of interest, those members must be included in a quorum of at least two out of three members of the board, and the Rule of Necessity may be applied to allow the other normally disqualified members to 'vote in addition to a normally qualified member so that body may transact official business. Richard E. Oeetz, Esquire December 9, 19R6 Page 5 Additionally, it should he noted that the State Ethics Act provides as fol lows: Section 3. Restricted activities. (b) No person shall offer or give to a puhlic official or puhlic employee or candidate for puhlic office or a memher of his immediate family or a husiness with which he is associated, and no puhlic official or puhlic employee or candidate for puhlic office shall solicit or accept, anything of value, including a gift, loan, political contrihution, reward, or promise of future employment hased on any understanding that the vote, official action, or judgment of the puhlic official or puhlic employee or candidate for puhlic office would he influenced therehy. 65 P.S. 403(h). We reference to this particular provision of law, not to imply that there is or will he any violation of the State Fthics Act, in this respect, hut merely to provide. a complete response to your question. Suhstantial questions, under the ahove provision of law could develop if, for example, the developer, in question, routinely hired puhlic officials to perform work for him and subsequently approached the governmental holy on which those officials served for particular action. Once again, we note that the ahove is not intended to imply that there has or will he any violation of the State Fthics Act hut merely to point nut the pertinent provisions of the law and the potential questions that could arise thereunder. Conclusion: Under the State Ethics Act, puhlic officials generally may not participate in any matter wherein they have a pecuniary interest. Tt is advised that the supervisors should proceed in the manner set forth in this advice so as to avoid any potential conflict of interest. Because under the current situation, the disqualification of two memhers of the hoard of supervisors would result in the township's inability to take official action in certain matters, it is advised that the township should apply a limited application of the common law Rule of Necessity. Such application would allow the normally disqualified memhers to participate in forming a quorum and voting in addition to the normally qualified member. In this case where two nut of the three supervisors are normally disqualified, a quorum may he formed under this application of the Rule of Necessity and normally disqualifed memhers may vote so long as the qualified member is present as part of the quorum and vote. In such a sitution, the township shoud give advance notice to the puhlic that the matters will he considered requiring the application of the Rule of Necessity and the puhlic record should reflect the reasons for the application of this rule. It is also suhmitted, that the extent and nature of the husiness relationship hetween the supervisors and the developer he disclosed. Richard F. neetz, Esquire necemher R, 1(1R6 Page f Pursuant to Section 7(Q)(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 puhlic record and will he made availahle 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 he scheduled and a formal Opinion from the Commission will he issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. ohn J Contino General Counsel