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