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HomeMy WebLinkAbout87-642 HowellMr. Walter H. Howell 477 Bantel Street Johnstown, PA 15905 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 10, 1987 ADVICE OF COUNSEL 87 - 642 Re: Conflict of Interest, Township Supervisor, Furloughed Policeman, Voting on Private Employers Bills and Police Matters Dear Mr. Howell: This responds to your letter of November 17, 1987, in which you requested advice from the State Ethics Commission. Issue: What restrictions the State Ethics Act imposes upon a township supervisor as to participation, voting and approving bills relative to his private employer and as to police matters that come before the township board when said township supervisor is a furloughed township policeman. Facts: In your letter you state that on November 9, 1987, the Upper Yoder Township Vacancy Board appointed you to fill the remaining two year term of township supervisor. You further state that you would like documentation regarding your voting power in light of the fact that you have been a furloughed township policeman for the past several years but have not severed your right to be recalled; you state that it is your belief that as long as your vote does not benefit you, should you be recalled, that it would be permissible for you to vote on police matters. Furthermore, you state that you are currently employed by Hunt Oil, Inc., with which the township does business. In this regard, you state that you receive no commission on sales or bonuses and ask how you should vote regarding the approval of bills from Hunt Oil. You conclude by requesting advice as to the proper and ethical manner in which to handle these situations under the State Ethics Act. Discussion: As a township supervisor, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. §402. As such, you are subject to the provisions of the State Ethics Act and the restrictions therein are applicable to you. Mr. Walter H. Howell December 10, 1987 Page 2 Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that no public official may use his office or confidential information to obtain a gain other than compensation provided for by law . Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "fianancial gain other than compensation provided by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. Of course, under this provision, you may not use your public position to secure any financial gain for yourself or for your private employer, Hunt Oil, Inc. It is further provided in Section 3(b) of the Ethics Act: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business .with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct Mr. Walter H. Howell December 10, 1987 Page 3 will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). It is assumed that such a situation does not exist here. Reference is made not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Reference must also be made to Section 3(d) of the Ethics Act which allows the Commission to review other areas of conflicts of interests. Generally, the types of activities encompassed by this particular provision are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to ensure the public that the interests of their officials do not conflict with the public trust or create the appearance of a conflict of interest. Under Section 3(d), you, as township supervisor, may not participate nor be involved in any township matter concerning the police department in light of your status as a furloughed policeman subject to possible recall. You must note your abstention of public record and the reason for that abstention as to any police matters that come before the townhip. Section 3(d) of the Ethics Act would also have application regarding voting on bills of Hunt Oil, Inc., which would be presented to the township. The Commission has held that if payment of bills submitted by an official's employer amounts to concurrence in payment of a pre - fixed, undisputed amount, the official - employee may vote to pay the employer's bill as presented. See Stewart, 79 -070. If, however, the payment to one's employer would be subject to the discretion of the official-employee or otherwise subject to question, dispute or adjustment, the official should similarly abstain from participating, including voting, in the Board's decision to pay the amount in question. See Reid, 82 -520 and Sheehan, 82 -556. See also Krushinski, No. 168. In the present case, if the Board has discretion as to the amount to be paid to Hunt Oil, Inc., and the price of a particular item purchased within the general contract price is not pre -set within the contract -bid price, then discretion is vested with the Board as to the payment. You may not participate in the exercise of the Board's discretionary payments to Hunt Oil, Inc., in such a circumstance without giving rise to an appearance of a conflict with the public trust. If the bills submitted are pre - ordained or pre -set by the general contract and if the Board does not decide in advance to purchase a particular item, the payment of a bill would be considered routine and not subject to your or the Board's discretion. You could participate in such a decision of the Board. If the Board does act to approve a particular purchase prior to the purchase, you should abstain similarly as in the situation where the price has not been pre - determined by the annual bid-contract. Mr. Walter H. Howell December 10, 1987 Page 4 Lastly. the Ethics Commission has only addressed your question relative to the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or any other code of conduct other than the Ethics Act. Specifically, the Commission has not addressed the questions of whether the above activities are permissible under the Township Code. Conclusion: As a township supervisor, you are a "public official" subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, the Ethics Act requires that you neither participate nor vote nor be involved in any police matters that would come before the township board. In this regard, you must note your abstention of public record and the reason for that abstention. Further, as to voting on bills of you private employer, Hunt Oil, Inc., the Ethics Act would not prohibit you from concurring as to payment of a pre -fixed undisputed amount but would require you to abstain from participating or voting when the bill is subject to question, dispute or adjustment or subject to discretion. Lastly, the Ethics Commission has only addressed your question under the Ethics Act but has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct or the Township Code. 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. Sincerely, Vincent J. Dopko General Counsel