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HomeMy WebLinkAbout88-565 LeonardMr. Keith W. Leonard 2231 Big Road Gilbertsville, PA 19525 Dear Mr. Leonard: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 26, 1988 88 - 565 Re: Conflict of Interest, Township Supervisor, Proposed Landfill, Supervisors' Residence Adjacent to Landfill; Supervisor /Member of a Citizen's Group Filing a Lawsuit This responds to your letter of March 8, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor voting or participating on a proposed landfill when the supervisor is a member of the citizens group that filed a law suit against the operation of the existing incinerator on the site which is the subject of the proposed landfill and when the supervisor owns property that is almost adjacent to the site. Facts: You state that you are a newly elected supervisor in New Hanover Township, Montgomery County and that you ran a campaign which is based in part upon your opposition to the proposed landfill site. After noting that your residence is almost adjacent to the proposed landfill, you advise that you and other members of the community have displayed signs indicating your displeasure with the proposed landfill and that you joined a citizen's group opposed to the location of this particular site. You then state that the citizen's group has filed a law suit against the operation of the existing incinerator on the site. After noting that the previous board of supervisors also opposed the landfill, you state that the legal counsel to the landfill owner has suggested that you should recuse yourself on such issues that would come before the present board of supervisors in light of your involvement with the citizens group and the Mr. Keith W. Leonard May 26, 1988 Page 2 incinerator law suit. You indicate your personal belief that you were elected because you were willing to be aggressive and to let your opposition be known; lastly, you indicate that your personal view agrees with the vast majority of voters on this issue. After expressing your view that you do not have a conflict because you do not own any other land, because your personal income would not be affected and because you do not have any social /political contacts to your knowledge, you conclude by requesting advice as to whether there would be any restrictions under the Ethics Act upon your participation as a second, class township supervisor relative to the proposed landfill. Discussion: As a supervisor for New Hanover Township you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code .51.1. As such, you are subject to the provisions of the Ethics Act. 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 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 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 Mr. Keith W. Leonard May 26, 1988 Page 3 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. Section 3(b) of the Ethics Act provides: (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 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. 5403(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 Mr. Keith W. Leonard May 26, 1988 Page 4 neither a conflict nor the appearance or 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. 5401. Such a conflict may exist where an individual represents one or 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, Opinion supra. Although there is no question that a public official may take a stand on public issues, problems may arise if the public official has some personal or private interest in the matter. The Commission has determined that a public official could not participate in a matter where his interest could be considered as indirect in nature. Welz, Opinion 86 -001. Likewise, it has been determined that a public official could not participate in matters before his governmental body if financial benefits would be derived therefrom. King, Opinion 85 -025 and Sowers, Opinion 80 -050. In the instant matter, it is noted that you joined the citizen's group that opposes the landfill operator relative to the proposed landfill site. Since your citizens group instituted a law suit, you are a part of a group which is in an adversarial relation as to the possible placement of the proposed landfill site. A matter of equal concern is the location of your personal residence vis -a -vis the location of the proposed landfill site. You have stated that your personal residence is almost adjacent to the site. If you were to participate in this matter because of the close proximity of your property, you would be taking action which would probably impact upon the value of your own personal residence. The Commission, as noted above, has determined that a public official should not participate in a matter where he has a personal financial interest unless his interest can be considered as remote. Markham, Opinion 85 -013. Because of your personal involvement in the litigation with the proposed landfill site and in light of the fact of the close proximity of your residence to that landfill site, your participation in matters relating to the landfill would create a conflict under Section 3(a) of the Ethics Act. See Jordan, Opinion 86- 005. Further, your participation would create the appearance of a conflict under Section 3(d) of the Ethics Act. Likewise, under Section 3(d) of the Ethics Act you may not participate in matters concerning the proposed landfill, you must note your abstention of public record together with the reason for your public abstention. Mr. Keith W. Leonard May 26, 1988 Page 5 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. Conclusion: As a supervisor for New Hanover Township, you are a "public official" subject to the provisions of the Ethics Act. Under Section 3(a) and 3(d) of the Ethics Act, you may not participate in matters relating to the proposed landfill, you must note your abstention of public record and the reason for your abstention. Lastly, the propriety of the 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. such. This letter is a public record and will be made available as 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 former 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