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HomeMy WebLinkAbout88-603 WilliamsonSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 11, 1988 Robert G. Williamson, Esquire 88 -603 190 Washington Street P.O. Box 423 East Stroudsburg, PA 18301 -0423 Re: Conflict of Interest, Township Supervisors, Rule of Necessity Dear Mr. Williamson: This responds to your letter of June 3, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether under the Ethics Act the Rule of Necessity would operate in a situation where two supervisors of a three member township board may have a conflict of interest so that those two supervisors could vote on a matter concerning a planned residential development. Facts: You state that you are the solicitor for Smithfield Township in Monroe County. You state that Shawnee Development, Inc. is a large recreational resort and development situated in the township which has applied for a very large scale planned residential development. You advise that one of the supervisors, Russell C. Albert is in a conflict situation and that the second supervisor, Mr. Richard Burnley may also have a conflict in that he owns a campground and sells recreational camping vehicles in the vicinity of Shawnee Development Inc. You state that he is currently negotiating with Shawnee Development to tie in his campground into the community-central sewage system which is owned and operated by Shawnee or a subsidiary of the company. You note that the campground is located outside of the proposed service area of the central sewage system. In addition to the above, it appears from a submitted fact sheet that Mr. Burnley may also be engaged in negotiations to sell his property to Shawnee Development Inc. Under these circumstances you question Robert G. Williamson, Esquire July 11, 1988 Page 2 whether there is a conflict of interest on the part of Supervisor Burnley and, if so, whether the Rule of Necessity may be applied in this instance regarding the matter of the conflict of two of the three members of the Board of Supervisors. Discussion: As supervisors for Smithfield Township, Messrs. Burnley and Albert are "public officials" 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, they 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 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. Robert G. Williamson, Esquire • July 11, 1988 Page 3 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. In the instant matter, since you have stated and since Mr. Albert agrees that he is in a conflict situation, the only matter to be considered is whether Mr. Burnley's involvement with Shawnee Development Inc. creates a conflict. The general rule which the Commission has established in these instances is that a public official may not vote or participate in matters in which he has a personal or private interest even though said interest might be considered as indirect in nature. See Welz, Opinion 86- 001. It is only in a situation where the personal or private interest of the public official might be considered as remote that the official would not be precluded from participation. See Markham, Opinion 85 -013. In this case, in light of the business negotiations which are occurring between Mr. Burnley and Shawnee Development Inc., regarding such matters as the possible tie in of his campground into the community - central sewage system which is owned and operated by Shawnee Development Inc., as well as the possibility of the sale of his property to Shawnee, it is clear under the above analysis that Mr. Burnley would have a conflict. Since the situation would then exist that two of the three supervisors of Smithfield Township would have a conflict, it is necessary to review the "Rule of Necessity ". Robert G. Williamson, Esquire July 11, 1988 Page 4 Although public officials must normally abstain from 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 conflicts of interest 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; additionally they could vote provided the normally qualified member(s) was (were) present. In addition, the Commission opined that advance notice must be given to the public that matters will be considered which require the application of the "rule of necessity" and further that the public record show the reason for the application of the rule. Applying the above rule to the instant matter, if there is no mechanism to allow a substitution for a third party for these two supervisors who have the conflict or if there is no provision to provide an alternative forum which could vote on the matter concerning the conflict, then in that instance, the rule of necessity would allow the supervisors to participate provided the third supervisor who has no conflict is present and provided there is compliance as to giving advance notice to the public that matters will be considered regarding application of the rule and further that the record will show the reason for the application of said rule. 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: The township supervisors for Smithfield Township are public officials subject to the provisions of the State Ethics Act. Since two of the three supervisors of Smithfield Township are in a conflict situation,_'the rule of necessity would operate provided there is no provision for the substitution of third party for these officials and provided there is no provision for an alternative forum; in which case, the rule woull allow these supervisors to participate provided they comply wi.`;h the rule of necessity which requires that the third supervisor who has no conflict is present and that advance notice is given to the public that matters concerning application of the rule Robert G. Williamson, Esquire July 11, 1988 Page 5 would be considered and further that the public record would show the reason for the application of the rule. 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. 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 within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, a,A„ Vincent J.Dopko, General Counsel