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HomeMy WebLinkAbout88-626 EvansMr. Bruce Evans R.D. #1, Finch Hill Carbondale, PA 18407 Dear Mr. Evans: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 12, 1988 88 -626 Re: Conflict of Interest, Township Supervisor, Dealing with Principal Contractor on Township Municipal Authority This responds to your letter of August 16, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any prohibition or restrictions upon a second class township supervisor in renting various equipment to the principal contractor of the township municipal authority. Facts: You state that you are the elected supervisor for Greenfield Township, Lackawanna County, and that the township sewer authority is in the process of constructing a sewer collection and system sewage treatment plant. You then note that three separate contractors were successful bidders and that the principal contractor rents equipment and trucks from D & R Garage Sales of which you are a principal. After stating that you are not a member of Greenfield Township Sewer Authority, you ask whether you would as a township supervisor be prohibited from dealing with the project of the sewer authority in light of your leasing of equipment to the principal contractor for the sewer authority. Discussion: As a supervisor for Greenfield 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. §402; Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Mr. Bruce Evans September 12, 1988 Page 2 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. Code §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 family 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, 466 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 his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. The term "business with which he is associated" is further defined under the Ethics Act as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. §402. In the instant matter, since you are the principal in D & R Garage Sales which rents equipment and trucks to the principal contractor for the sewer authority, it is clear that D & R Garage Sales is a business with which you are associated. However, since you are a member of the Township Board of Supervisors but are not a member of the Greenfield Township Sewer Authority, it Mr. Bruce Evans September. 12, 1988 Page 3 is clear that your governmental body is the township but not the sewer authority. The question now arises as to whether your contractual relationship with the principal contractor for the sewer authority would preclude you from dealing with the sewer authority project. 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 supra. Although Sections 3(a) and 3(d) of the Ethics Act would not prohibit you under these facts and circumstances from dealing with the sewer authority project in your capacity as township supervisor, you would be required to abstain in those situations where a matter of the sewer authority would specifically concern the principal contractor with which you have a business relationship. Thus, although there is no per se prohibition to your voting as a township supervisor as to general matters of the sewer authority, you must abstain in any instance where an issue arises which would relate to the principal contractor with which you have a business relationship. See Goodman, Opinion 88 -001. Mr. Bruce Evans September 12, 1988 Page 4 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. 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 Greenfield Township Supervisor you area public official subject to the provisions of the Ethics Act. Although Sections 3(a) and 3(d) of the Ethics Act would not restrict you as a township supervisor from voting on general matters concerning a sewer authority when you have a business relationship with the principal contractor of the sewer authority, you must abstain and note your abstention of public record as to any specific issues of the sewer authority which would involve the principal contractor. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Mr. Bruce Evans September 12, 1988 Page 5 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 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. ncerely, Vincent . Dopko, General Counsel