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HomeMy WebLinkAbout87-648 ShirkKenelm L. Shirk, III, Esquire P., 0. Box 1552nue Lancaster, PA 17603 -1552 Dear Mr. Shirk: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 22, 1987 ADVICE OF COUNSEL 87 - 648 Re: Conflict of Interest, Township Supervisor, Rule of Necessity, Public Notice This responds to your letter of November 27, 1987, in which you requested advice from the State Ethics Commission. Issue: What restrictions the Ethics Act imposes regarding public notice as to township supervisors who have conflicts of interests with a developer in the township and who are proceeding under the "rule of necessity." Facts: In your letter you state that you are a solicitor for the Board of Supervisors of Clay Township and that two of the three supervisors have a long standing conflict of interest with a developer in that township. After referring to Hahalis Opinion, 83 -009, which discusses the "rule of necessity ", you note that the developer with which the two township supervisors have a conflict is engaged in extensive development in the township; as a result, matters come up at almost every township supervisors' meeting regarding the developer. In light of the foregoing, you ask what "public notice" is necessary regarding the rule of necessity.and secondly, must "public notice" be given every time there is a meeting or can it be done in a standing fashion in light of advertising expenses. You conclude by requesting advice as to the nature of "public notice" and the extent to which public notice must be given relative to the application of the "rule of necessity." Discussion: As members of the Clay Township Board of Supervisors, the members are "public officials" as that term is defined in the Ethics Act. See Volpe, 579 -R; 65 P.S. §402. As such, their conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to them. Kenelm L. Shirk. III, Esquire December 22, 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 a public official may not use his public office or confidential to obtain a gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official, such as voting, participating or lobbying, to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Section 3(b) of the Ethics Act provides: 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). Section 3(b) of the Ethics Act basically provides that no public official shall receive anything of value based upon the understanding "that his official action will 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 Kenelm L. Shirk, III, Esquire December 22, 1987 Page 3 associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). Although public officials must normally abstain in voting or participating in matters wherein they have a conflict of interest, the "rule of necessity" operates in instances where the governmental body could not function in light of the conflict of interests of several members of that governmental body. If there is no provision for the substitution of third parties for the officials who have a conflict of interest or there is no provision for an alternative forum, then the "rule of necessity" would operate because the governmental body would be unable to otherwise function. The Commission opined in the Hahalis Opinion, 83 -009, that if there is no provision for substitution of parties or an alternative forum, the normally disqualified members under the "rule of necessity," could participate in forming a quorum; additional ly they could vote provided the normally qualified member or members was present. In addition, the Commission opined that the governmental body must give advance notice to the public that matters will be considered which require the application of the "rule of necessity" and further that the public record should show the reason for the application of the rule. In this context, you inquire as to what type of "public notice" is necessary and, secondly, whether the public notice must be given as to every meeting of the Board of Supervisors. Although the Second Class Township Code makes various references to the term "notice ", there does not appear to be any provision in the Code which defines "notice" or "public notice." Similarly, the Ethics Act does not contain any statutory definition of the term "notice" or " public notice" or what constitutes the sufficiency of public notice. However, there is ample judicial precedent construing the term "public notice ". "Public notice" has been construed to mean notice to the public but not to one or several individuals through one or several notices. In re: Lishman, 7 Haw. 266. Further, "public notice" has been judicially defined to mean reasonable notice to the public generally as distinguished from personal notice. See Catholic Order of Foresters v. State, 67 N.D. 228, 271 N.W. 670. The Pennsylvania Supreme Court in Pennsylvania Training School v. Independent Mutual Fire Insurance Company, 127 Pa. 559, 18 A.2d 392 (1889) provided a short discussion as to the term "public notice ": "It will be seen that the notice to be given is to be a "public notice," ... We think it is quite plain that notice by advertisement in a newspaper is the kind of notice required ... That kind of notice was abundantly given all over the region ... There is no requirement that a notice shall be served upon each individual member every Keneim L. Shirk, III, Esquire December 22, 1987 Page 4 time ... nor was a notice by mail prescribed. The notice was to be public, which is distinguished from private, and, in so far, the provisions of the law were complied with. Not actual notice but notice by publication is the kind of notice di rected by law." Id. at 562, 563. Consistant with the interpretation of the Pennsylvania Supreme Court in the Pennsylvania Training School case, supra, "public notice" would require that the township supervisors advertise in a newspaper of general circulation which would cover the township and which would give reasonable and advance notice to the public in the township of a supervisors' meeting which would require the application of the "rule of necessity" and the reason for the application of that rule. Turning to the second matter of whether the "public notice" must be given every time there is a meeting or whether it can be done in a "standing fashion ", it appears that it is within the intendment of the Pennsylvania Tranng School case, supra, that for a "public notice" to be exactly that, it i s necessary for the public to be advi sed in each instance where the conflict would exi st which would necessitate the appl i cation of the "rule of necessity." In this regard, reference must be made to the preamble of the Ethics Act which provides that the stated purpose of the Act is to strengthen the faith and confidence of people in their government by assuring the public that the financial interests of the holders or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. §401. Therefore, under the Ethics Act, it would be necessary to give this "public notice" in each instance where the developer would have matters before the Township Board of Supervi sors. Conclusion: The members of the Board of Supervisors of Clay Township are "public officials" subject to the provisions of the Ethics Act. In situations where several members have a conflict of interest with a developer or party who has business before the township, and there is no which would allow substitution of other parties for the supervisors who have the conflict or there is no provision for an alternative forum, then the rule of necessity would allow the normal ly disqualified members to partici pate i n formi ng a quorum and voting provided the normally qualified member is present and voted. Further , it is necessay to give "public notice" to the public for meetings which would require application of the "rule of necessity" and the public record must reflect the reasons for the application of the rule. Lastly, "public notice" requires that the general public within the township must be given reasonable and ample notice through an advertisement in a newspaper of general ci rculation as to those Board of Supervi sors' meetings wherein they would have conflicts which would necessitate the application of the "rule of necessity" and the "public notice" must be given for every meeting wherein -` ' ct of interests would exists. Lastly, the questions which you have posed have only been considered and addressed under the Ethics Act. Kenelm L. Shirk, III, Esquire December 22, 1987 Page 5 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 crimi nal 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 w i l l 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, t„,,,,O,J.C)6 Vincent j. Dopko General Counsel