HomeMy WebLinkAbout88-584-A DeLanoMr. Robert F. DeLano
P.O. Box 245
Frederick, PA 19435
Dear Mr. DeLano:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
SUPPLEMENTAL ADVICE OF COUNSEL
August 12, 1988
88 -584 -A
Re: Conflict of Interest, Second Class Township Supervisor:,
Voting on Proposed Landfill
This responds to your letter of June 29, 1988, in which you
requested supplemental advice from the State Ethics Commissions
concerning Advice of Counsel No. 88 -584 issued on June 14, 1988.
Issue: You ask whether the State Ethics Act presents any
restrictions or prohibition upon a second class township
supervisor from voting on a proposed landfill when the supervisor
is a member of a class action lawsuit against the owners of an
incinerator which is located on the same site of the landfill and
which is operated by the same owners of the landfill but through
a different corporate entity.
Facts: In your original advice request, you stated that you .
are a newly elected supervisor in New Hanover Township,
Montgomery County and that you are opposed to a group of people
operating under the name of New Hanover Corporation which is
trying to install a landfill in the township. You noted that
your opposition to the landfill was your main election platform
and that 70% of the voters supported your view. You also
expressed your belief that you were elected because of your
strong stand on this issue. You requested advice as to whether
you had to recuse yourself as to actions pertaining to the
landfill. After analyzing the Ethics Act and various opinions of
the Commission, you were advised in Advice of Counsel, No. 88 -584
which is incorporated herein by reference, that as long as you
did not have any personal or private interest in the matter such
as owning property adjacent or contiguous to the landfill or
being involved in the litigation with the landfill, you would not
Mr. .?obert F. Delaao
August 12, 198'
Pag: 2
be precluded from voting. By letter of J erne : 3, 1988, you
requested clarification based upon your involvement in private
litigation pertaining to the landfill. You state that you are a
member of an environmental group known as the Paradise Watch Dogs
which is involved in litigation over possible operating permit
violations of an incinerator that is operated by the same owners
(as to the landfill) but under a different corporate entity. You
further advise that the litigation involves no monetary
consideration on the part of the plaintiffs in the suit. You
conclude by seeking further advice based upon the above
additional information.
Discussion: As a supervisor for New Hanover Township you are a
public official as that term is defined in the Ethics Act. 65
P.S §402; 51 Pa. Code §1.1. As such, your conduct is subject to
provisions of the Ethics Act and the restrictions therein are
ap?.Licable to you.
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).
Under Section 3(a) quoted above, the State Ethics Commission
has determined that use of office by a public official to obtain
a financial gain for himself or a member of his immediate
or a business with which he is associated which is not provided
for in law transgresses the above provision of law. Thus, use of
office by a public official to obtain a financial gain which is
not authorized as part of his compensation is prohibited by
Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed
McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 46f
A.2d 283 (1983); Yacobet, Order No. 412 - R, affirmed Yacobet v.
State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536
(1987). Similarly, Section 3(a) of the Ethics Act would prohibit
a public official /employee from using public office to advance
t'r_ . Robert F. Delan ,
Augn st 1.2, 1988
Page 4
In Golla, Opinion 88 -0A, the State Ethics Commission
determined that a borough councilmember who was a member of a
class action against the borough and the water /sewer authority
could not vote during the pendency of the litigation with the
water authority on any matters involving that authority.
Although it was argued in that case that the councilmember
should only be precluded from voting on matters of the authority
that related to the litigation, the Ethics Commission concluded
that there was an inherent conflict of interest as to the
councilmember's voting on matters of the authority when he was a
member of a class action against that authority. In this case,
it appears that you are a member of a class action litigation
against the same individuals who operate the incinerator and the
proposed landfill. Additionally, the incinerator and proposed
landfill are located at the same site. In applying Golla,
Opinion supra, it is clear that you have a personal interest in
this matter in light of your involvement in this litigation;
therefore, you should not vote or participate in the matter of
the proposed landfill both under Sections 3(a) and 3(d) of the
Ethics Act based upon a conflict and an appearance of conflict of
interest in this case.
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.
Conclusions As a second class township supervisor in New Hanover
Township, Montgomery County, you are a public official subject to
the provisions of the State Ethics Act. You may not under the
Ethics Act participate or vote in a matter concerning a proposed
landfill when you are part of a class action suit against the
individuals who operate the incinerator under one corporate
entity on the site where those same individuals are proposing
the landfill. 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
Mr. Robert F. Delano
August 12, 1988
Page 3
his own interests;
Ethics Commission,
Likewise, a public
position of public
Opinion 84 -015.
Koslow, Order 458 -R, affirmed Koslow v. State
Pa. Commw. Ct. , 540 A.2d 1374 (1988).
official /employee may not use the status or
office for his own personal advantage; Duff,
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 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. §401. 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 85 -010.
In the instant matter, the question to be decided is whether
your involvement in the class action suit against the owners of
the incinerator who are also the owners of the landfill, although
through a different corporate entity, would preclude you from
voting or participating on matters concerning the landfill.
Initially, it should be noted that although there is technically
different corporation(s) involved as to the incinerator and as to
the landfill, you have indicated that the owners of the
incinerator and the landfill are one in the same. The question
now becomes whether your involvement in the class action
litigation against the owners of the incinerator would preclude
you from voting or participating on the landfill which is
operated by the same owners but under a different corporate
entity.
Mr. Robert F. Delano
August 12, 1988
Page 5
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