Loading...
HomeMy WebLinkAbout88-541 UmsteadRaymond E. Umstead, Esquire 292 Church Street Spring pity, PA 19475 Dear Mr. Umstead: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 7, 1988 ADVICE OF COUNSEL 88 -541 Re: Conflict of Interest, Township Manager, Purchasing Property in the Township This responds to your letter of February 19, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibitions or restrictions upon a township manager from purchasing property in the township when the property may eventually be subdivided for building purposes. Facts: In your letter you state that you are currently employed as the township manager of Lower Pottsgrove Township which is a first class township in Montgomery County. You further state that your duties and responsibilities as manager are to administer the daily business of the township which would include directing the work force and the management of the office but not deciding policy matters. After noting that you do not review any subdivision or land development plans or have any input as to approval, you indicate that you have the opportunity to purchase approximately 35 acres from a local farmer within the township which may result in building and subdivision in the future. After stating that you do not sign any checks or approve any expenditures or contracts or agreements and do not set assessments or taxes except as it relates to the preparation of the annual budget, you request advice under the Ethics Act, after further noting that you plan to retire within the next year, as to whether there would be any conflict in your position as township manager in purchasing this property for which you contemplate subdividing and building. Discussion: As the manager for Pottsgrove Township, you are a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Mr. Raymond E. Umstead April 7, 1988 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 or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. 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 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." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 466 A.2d 283 (1983). See also Yocabet v. State Ethics Commission, Pa. COMM, . , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Under Section 3(a) of the Ethics Act, there is no restriction or prohibitin on you as a private citizen regarding purchasing property that is located within the township. It is expressly assumed for purposes of this advice that you have not used public office or any confidential information relating to the purchase of that property. While the Ethics Commission has determined that a public employee or official may not use public office or confidential information to obtain a gain or benefit which is not provided for by law, the Commission has also determined that a public employee or official should not be put in a lesser position as compared to any other private citizen regarding that public official's or employee's participation in private matters. See Pepper, Opinion 87 -008. Under these circumstances, Section 3(a) of the Ethics Act would not preclude you from purchasing the 35 cres of ground in the township. Mr. Raymond E. Umstead April 7, 1988 Page 3 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 must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or Mr. Raymond E. Umstead April 7, 1988 Page 4 more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, supra. Under Section 3(d) of the Ethics Act, you could not have any involvement as township manager in any matter involving the 35 acres of ground which you contemplate buying. It is noted that there does not appear to be any possibility of your participation in any event since you have stated that you duties are limited to administering the daily business of the - township and directing the work force and managing the office but do not involve any review or input as to subdivision or land development plans. Section 3(e) of the Ethics Act provides: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, 1 obbyi ng, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. In the event that you plan to retire, you should be aware of the above provision of Section 3(e) of the Ethics Act and conform your conduct to its requi rements. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Mr. Raymond E. Umstead April 7, 1988 Page 5 Conclusion: As a manager for Pottsgrove Township, you are a public employee subject to the provisions of the State Ethics Act. Under the above facts and circumstances, you may, consistent with the Ethics Act, purchase the 35 acres of ground in the township in which you contemplate future development through development through building and subdivision subject to the qualifications noted above . Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. 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 wi th; n 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Vincent J. Dopko General Counsel