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HomeMy WebLinkAbout87-515 TompkinsEdwin W. Tompkins, III Tompkins & Tompkins P.O. Box 31 Emporium, PA 15834 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 February 20, 1987 ADVICE OF COUNSEL 87 - 515 Re: Township Supervisor Participation in Matter Involving His Residential Neighborhood Dear Mr. Tompkins: This responds to your letter of January 13, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon a township supervisor's participation in the township's development of a sewer system in the area where the supervisor resides. Facts: You advise that you are an appointed township solicitor for Grove Township, Cameron County, Pennsylvania. In this respect, you have been authorized by Township Supervisor Gerald Cooney to seek the advice of the State Ethics Commission in relation to the above situation. You advise that the sewage system in one of the residential areas of Grove Township has been condemn by the Pennsylvania Department of Environmental Resources and as a result, the residents of the area will be required to install a new sewage system. One of the township supervisors, Gerald Cooney, is a resident of the area wherein this system will be required. Prior to his term on the board of supervisors, Mr. Cooney, as a private citizen had approached, along with other residents, the township board of supervisors in an effort to determine if any public funds would be available in relation to the sewage system project. Subsequent to this time, Mr. Cooney was appointed to fill an unexpired term on the board of supervisors. This appointment was made in the fall of 1985. Mr. Cooney, thereafter, was elected to a six year term of office commencing in January, 1986. In the fall of 1985, when Mr. Cooney was first on the board of supervisors, the board approached the county commissioners in Cameron County in order to obtain funds under a block grant program. These funds were to be used for the installation of the sewage system. Prior to this approach in 1985, the supervisors had previously attempted to obtain these funds from Cameron County. Mr. Cooney was not a member of the board of supervisors during that original application process. Edwin W. Tompkins, III February 20, 1987 Page 2 Cameron County has, in fact, applied for funds from the Pennsylvania Department of Community Affairs under a block grant program which will be utilized for the construction of the sewage project. As noted above, Mr. Cooney, as a resident of this area, would receive the benefit resulting from this program. You further advise that Mr. Cooney does not qualify as a low- moderate income household, and as a result, would be required to pay any tap -in fee. The actual approval of the allocation of block grant monies for this project will come from the Pennsylvania Department of Community Affairs. You requested the advice of the State Ethics Commission as to whether there would be any conflict of interest within the purview of the State Ethics Act. Discussion: As a township supervisor in a township of the second class the individual involved herein is a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, this conduct must conform to the requirements of that law. 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). Within the above provision of law, no public official may use his public office or any confidential information received therefrom in an effort to obtain financial gain for himself. In the instant situation, assuming that the funds which are approved by the Department of Community Affairs and distributed to Cameron County are controlled and disbursed by Cameron County to a contractor who then performs the sewage system installation project, it appears as though the township board of supervisors would not be performing any functions in relation to this project. As such, there would appear to be no implication of the above provision of law. If, however, the monies are allocated through the county to Grove Township and the supervisors must in fact disburse those funds for the installation of the project, then the supervisor in question should abstain from participating in the township's decisions relating to this matter. This is so because by acting as a township supervisor in relation to the installation of this system, Mr. Cooney may be perceived to be using his public position to obtain a financial benefit for himself. While it is true that Mr. Cooney will be required to personally pay a tap -in fee, it also Edwin W. Tompkins, III February 20, 1987 Page 3 appears as though the installation of the system would have been entirely upon the residents had not these funds been allocated. Therefore, Mr. Cooney should not use his position, as a township supervisor, to further aid the installation of this project. In any event, the State Ethics Act would present no per se or absolute prohibitions upon Mr. Cooney serving as a township supervisor at a time when the township is performing work in his residential area. This Commission has previously determined that this type of activity that affects a segment of the general public as opposed to the direct interests individually of a public official, would not present to the type of inherent conflict of interests that would require Mr. Cooney to forego either his position or the project. See Moyer, 86 -504. In addition to Section 403(a) cited above, the Ethics Act also authorizes this Commission to address other areas of possible conflicts. 65 P.S. §403(d). Generally, conflicts of interests develop any time that a public official attempts to serve one or more interests that are adverse. The paramaters of the types of activities that are encompassed by this provision of law are generally defined by the intent and scope of the State Ethics Act. The State Ethics Act was promulgated in order to insure the public that the financial interests of their officials do not conflict with the public trust. 65 P.S. §401. As such, a public official '?!l; :t not participate or otherwise become involved in any matter that would create a potential conflict of interests. In the instant situation, Mr. Cooney, as a resident of the project area, is interested in insuring that this project is installed so as to benefit his personal interest along with those of the other residences. As a township supervisor, however, he must insure the public's interests in an objective fashion. Thus, his interests in protecting the public may be adverse to that of his own personal interests. Because of this, Mr. Cooney should abstain from participating in any thing that the township does related to the sewer project at this time. His abstention in such matters should be publicly noted and appropriately recorded in appropriate township minutes wherein such actions are taken. Additionally, while this Commission cannot envision every potential conflict of interests that may arise, Mr. Cooney is advised that in the event a question develops in the future, the further advice of this Commission may be necessary. Conclusion: The State Ethics Act presents no per se prohibition upon an individual serving as a township supervisor in a township wherein a sewer project will be developed when that project affects his residential neighborhood. The supevisor should, however, abstain from participating in any township action relating to that project. Such abstention should be publicly recorded and appropriately noted. Edwin W. Tompkins, III February 20, 1987 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerel o Acting eneral Counsel