HomeMy WebLinkAbout87-532 BeitlerMr. William J. Beitler
Box 105 K Route 1
Kempton, PA 19529
Re: Township Supervisor, Surveyor, Conflict of Interest
Dear Mr. Beitler:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
March 30, 1987
ADVICE OF COUNSEL
87 -532
This responds to your letter of March 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 being simultaneously employed as a surveryor in the township.
Facts: You have requested the advice of the State Ethics Commission in
relation to the above issue. You are currently a registered professional
surveyor. You have requested the advice of the State Ethics Commission
regarding whether you, in that position, may also be elected as a township
supervisor. Additionally, you have requested the advice of the Commission
regarding whether you may still do subdivision work in the township in which
you are elected if you remove yourself from participating in the township's
actions regarding plans in which you may have been involved. You have also
requested the advice of the Commission regarding the restrictions that would
be placed upon members of your firm who represent clients before the township.
Discussion: As a township supervisor, you would clearly be a public official
as that term is defined in the State Ethics Act. 65 P.S. Section 402. As
such, you conduct must conform to the requirements of the law. Sowers,
80 -050; Wel t z, 86 -001.
The Ethics Act provides in part 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).
We have reviewed your specific question in past and have determined that
as a public official you may not within the above provision of law,
participate in any matter in which you have a personal pecuniary interest.
Dawson, 84 -513; Downs, 85 -554.
Mr. William J. Beitler
March 30, 1987
Page 2
As a township supervisor, you will be faced with a situtation where the
board of supervisors may be asked, on occasion, to review, consider and
approve proposals in which you have performed prior professional services as a
surveyor for a fee. In such situations, you must publicly disclosed the
extent the your involvement in the preparation of the plans that are being
submitted to the municipality and you must also abstain from participating in
reviewing these plans as well as in any recommendations, discussions or -
considerations of the municipality's actions on such plans. Such disclosures
should be made at a public meeting and should be incorporated into the minutes
of that meeting. See Sowers, 80 -050. This conclusion derives not only from
the aforecited provision of law, but, also from Section 3(d), which allows
this Commission to address other areas of possible conflict. 65 P.S. §403(d).
Such a conflict is determined in light of the enumerated intent of the act,
which is to ensure the public that the financial interest of thier officials
do not conflict with the public trust. 65 P.S. §401. Such a conflict arises
where the public official serves or appears to serve two competing interests,
such as a private client as well as the general public. Alfano, 80 -007.
Previous rulings of the Commission, affirm this position and have
mandated as a general rule that public officials or employees may not review,
approve or inspect or take any official action on a matter in which he might
be interested as an individual. For example, the Commission concluded that a
zoning officer who is also a developer could not issue permits to himself.
Simmons, 79 -056. Similarly, the Commission has concluded that a developer who
is an elected township supervisor could not inspect or approve his own work as
a developer. See Sowers, supra. The Commission has also made identical
rulings in relation to township supervisors who are surveyors. See Dawson,
supra; Downs, supra.
Generally, the State Ethics Act would not present any per se prohibition
upon continuing your private endeavors as a surveyor in the locality wherein
your are a public official. However, as noted above, you cannot participate
in any matter that comes before the township board of supervisors that
involves plans in which you have participated in preparing or that involve
clients by whom you are employed. The Ethics Act also would present no
prohibition upon a member of your surveying firm from presenting proposals to
the township. Once again, however, you as an official of the township, in
order to avoid a conflict of interest, must not participate to any extent in
these matters and must also disclose and have such disclosure recorded.
Finally, it should be noted that the State Ethics Act would not only
prohibit your affirmative participation in these matters, but would also
prohibit you from using any confidential information obtained through your
official position as a township supervisor to aid either your clients, your
firm, or a member of your immediate family.
Mr. William J. Beitler
March 30, 1987
Page 3
Conclusion: As a public offical serving as a township supervisor, your
conduct in relation to this public post and private employment, should be
governed by the guidelines expressed above. Specifically, in your capacity as
a township supervisor, you must:
1. Not use your official position to obtain any business in a
private capacity as a surveyor;
2. Not utilize confidential information gained through your
official position as a township supervisor to benefit yourself, a
business wi which you are associated, or a member of your
immediate family;
3. Refrain from participating in discussions, review,
recommendations and voting on matters which relate to clients you
served as a private surveyor which are presented to the township
planning commission and the board of supervisors for review and
approval;
4. Make public your relationship to such private clients with
respect to any plans or recommendations that come before the
township for final or further review and approval, and;
5. Not review or approve in your capacity as a township supervisor
on behalf of the township any plans on which you or a business with
which you are associated worked as a private surveyor.
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.
Singly,
ohm . Contino
Act ng General Counsel