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HomeMy WebLinkAbout87-568 RodgersMr. Thomas E. Rodgers Box 123 Chicora, PA 16025 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 19, 1987 ADVICE OF COUNSEL 87 -568 Re: Conflict of Interest, Borough Councilmember Participating in Matter Relating to Brother Dear Mr. Rodgers: This responds to your letter of April 30, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon your participating in the borough's purchase of a parcel of land from your brother. Facts: You advise that you currently serve as a member of borough council in Chicora. You have served in this position since January, 1986. You advise that the borough is currently experiencing various problems relating to the residential water supply for residents of the borough. The Department of Environmental Resources has cited the borough in the past for the high iron content of the borough's water. You have further indicated that since taking office, you and the other members of borough council have had to terminate two wells serving the borough. In an effort to replace these water supplies, you and the other members of the borough council have sought additional areas from where water could be obtained. You have advised that a viable spring is located on the land which is owned by your brother and his wife. The spring is currently used by your brother and one other family. You advise that they have indicated a willingness to sell this land to the borough as long as they will be able to retain the first right to use water for their two homes only. You advise that your brother had planned to subdivide this land and sell lots which would have produced a larger return on his investment. You have requested the advice of the State Ethics Commission regarding whether any prohibitons would be placed upon you in relation to the instant matter. Discussion: As a member of a borough council, you are clearly a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. Domalakes, 85 -010. Mr. Thomas E. Rodgers May 19, 1987 Page 2 The 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). The Act further defines member of one's immediate family as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Your brother, of course, as can be observed from the foregoing definition is not to be considered a member of your immediate family within in the purview of section 3(a) of the State Ethics Act. Therefore, this provision of the law would not place any prohibitions upon your conduct in relation to this matter. In addition to the foregoing, the Ethics Act also authorizes this Commission to address other areas of possible conflicts of interest. 65 P.S. §403(d). A conflict of interest would arise on any occassion where a public official attempts to serve one or more interests that are adverse. Generally, the Ethics Act was promulgated in order to ensure the public that the financial interests of their officials do not conflict with the public trust. In the instant situation, while it is true that the borough is currently in need of a new water supply, and while it is also delineated in your letter of request that the borough's need would be satisfied with the purchase of property from your brother, certain cautions should be observed by you as a member of bourgh council in order to avoid a conflict of interest. Initially it should be noted that the Ethics Act presents no per se prohibitions upon the borough's purchase of this tract of land. It would, however, be the better practice for you as a public official to avoid participating in the negotiations for the purchase of this property. This particular phase of the property's purchase, could be conducted by another member of borough council, and as such, this would alleviate the potential for any conflict of interest to develop. This is so, especially in light of the fact that, these types of negotiations generally do not occur in the public's view. In addition to the foregoing, it is also advised that the terms of the purchase agreement and the facts surrounding the negotiations should at some point in time be outlined Mr. Thomas E. Rodgers May 19, 1987 Page 3 for public review during a meeting of the borough council. Finally, while section 3(a) of the Ethics Act would not prohibit your abstention in this matter in relation to the final vote of borough council in purchasing the property, it would be the better practice for you to abstain from participating in this matter in order to comply with the provisions of section 403(d) of the State Ethics Act as set forth above. In this way, you would avoid any potential conflict of interest between the responsibilities that are owed to the borough and the benefits that would accrue to your brother through the borough's purchase of this property. Of course, all of the foregoing is prefaced upon the assumption that you as an individual have no direct or specific interest in the borough's purchase of this property and that you will not be financially benefiting therefrom. Conclusion: While the State Ethics Act presents no per se prohibitions upon your participation in the borough's purchase of property from your brother, it would be advisable for you in the instant situation to abstain from participating in the negotiation of the borough's purchase of that property. Additionally, it would also be the better practice for you to abstain from the borough's actual purchase of that property. The facts surrounding the purchase of this property should be delineated during a public meeting of the borough. 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. Sinc Actin. General Counsel