Loading...
HomeMy WebLinkAbout88-584 DeLanoMr. Robert F. DeLano P. C. Box 245 Freederick, PA 10435 Dear Mr. This requested DeLano: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 14, 1988 88-514. Re: Conflict of Interest, Second Class Township Supervisor, Voting on Proposed Landfill responds to your letter of May 11, 1988 .i.n w10.ch you advice from the State Ethics Commission. Issue: You ask whither the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor from voting on a proposed landfill when the opposition to the landfill was the main issue on which the township supervisor ran his campaign. Facts: You state that you are the newly elected supervisor in New Hanover Township, Montgomery County. After noting that a group of people operating under the name of New Hanover Corporation are seeking to install a landfill in the township, you state that you decided to run for the position of Township Supervisor on a platform which opposed the landfill. You then state that there was a record turnout at the polls and that 70% of the voters supported your views. After noting that the legal counsel for the New Hanover Corporation has requested that you recuse yourself from matters pertaining to the landfill, you state that you were elected because of your strong stand on this issue and that if you did not make decisions regarding this matter, you feel that you would betray the trust of the voters who elected you. You conclude by requesting advice under the :,thics Act regarding your participation in discussions or the voting as to the proposed landfill. Mr. Kob Sri: F. June 14, 1988 Page 2 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. 5402; 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 - :mployee may not use his public office or confidential i- form.tion 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 A_mcelf 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 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. Regarding the issue as to whether a public official can vote on matters in his governmental body concerning an issue which the public official has an interest, the commission has determined that the public official may not vote or participate in the matter if he has some personal or private interest in the matter even though such interest might be considered indirect in nature. Mr. Robert F. Delano June 14, 1988 Page 3 See Welz,Opinion 86 -001. However, if the interest of the public official in the matter before the township is considered as remote, then he would not be precluded from participating or voting, See Markham, Opinion 85 -013. In applying the above concepts to the instant matter, it would appear that if you own property which is adjacent or contiguous to the landfill site whereby your property value could be affected by your vote, t]Em in that instance you could not participate or vote in the matter. However, if the value of your land would not be affect anymore than the value of the land in general in the townsh5r, then clearly your interest would be remote and you coulc participate or vote. Likewise, if you individually or a. a croup were involved in private litigation concerning the landfill, you would be precluded from voting or participating in such a circumstance. In this case, since you have only posed the question in general terms, only a general a response maybe given. Thus, assuming that you have no personal or private interest in this matter as outlined above, the Ethics Act could not restrict or preclude you from voting or participat::.g in this matter. 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 second class township supervisor in New Hanover Township, you are a public official subject to the provisions of the State Ethics Act. Assuming that you have no personal or private interest in the matter as outlined above, the Ethics A�t would not prohibit you from voting or participating regarding a proposed landfill site in the township. Lastly, the propriety of 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 Mr. Robe- ; F. Deler June 14, 19d' Page 4 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 ridvics pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko, General Counsel