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HomeMy WebLinkAbout88-640 DingmanWilliam K. Dingman, P.E. Vice - President EDM Consultants, Inc. Century Plaza, Suite 204 100 West Main Street Lansdale, PA 19446 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 88 -640 Re: Conflict of Interest, Water Authority Member, Planning Commissioner, Simultaneous Service, Business Contracting with Township Dear Mr. Dingman: This responds to your letter of September 8, 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 water authority member from also serving on a planning commission and secondly, whether the Ethics Act would restrict or prohibit a business with which the public official is associated from being employed by the township. Facts: In your letter you state that you are a professional engineer and principle owner of EDM Consultants, Inc. a civil environmental engineering firm in Lansdale, Pennsylvania. You state that the township board of supervisors has appointed you to the North Penn Water Authority which is an independent public authority consisting of representatives from ten municipalities. In addition, you advise that you have been appointed to the planning commission of Towamencin Township. You then state that your firm is employed by the township as the sanitary sewer engineer and that another principle in the firm handles all client relationships, attends public meetings, and completes reviews of developer submitted subdivision plans to the Mr. William K. Dingman October 26, 1988 Page 2 township. You further state that EDM comments on the subdivision plans which are presented to the planning commission as part of the subdivision review process. You then express your view that the Planning Commission is not covered by the Ethics Act noting that it only makes recommendations to the supervisors as to approval or disapproval of subdivision lands. You state that EDM Consultants Inc. does not work for any clients or developing land within the township or clients who would present plans to the North Penn Water Authority; if the foregoing would ever occur, you would abstain from all action on such plans. You then conclude by requesting advice from the Commission as to whether the Ethics Act would be implicated by your service on the multiple boards and by the employment of your firm by the township. Discussion: As a member of the North Penn Water Authority 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; 51 Pa. Code §1.1. 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. S403(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 Mr. William K. Dingman October 26, 1988 Page 3 Ethics Commission, Likewise, a public position of public Opinion 84 -015. Pa. Commw. Ct. , 540 A.2d 1374 (1988). official /employee may not use the status or office for his own personal advantage; Huff, The term "business with which he is associated" is defined 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. S402. Section 3(c) of the Ethics Act provides: (c) No public official or public employee or a member of his immediate family or any further 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). 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 addition to the foregoing, the State Ethics Act provides as follows: Mr. William K. Dingman October 26, 1988 Page 4 business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). In relation to the above provision of law, the State Ethics Commission has generally determined that this provision is a procedure to be used when a public official or employee contracts with his own governmental body in excess of $500. Bryan, Opinion 80 -014; Lynch, Opinion 79 -047. The Commission, however, has also determined that the above provision of law is not a general authorization for a public official to contract with his own governmental body where such is otherwise prohibited by law. The above provision of law clearly is intended to be a procedure to be utilized where contracting is otherwise allowed by law. For example, if a particular business transaction were prohibited under Section 3(a) of the State Ethics Act, then such contracting would not be in accord with Section 3(c). In the instant matter, you have presented two questions for consideration under the Ethics Act: your simultaneous service on the North Penn Water Authority and the Towamencin Township Planning Commission; secondly, the involvement of your business, EDM Consultants with the township. As to the first matter concerning your simultaneous service, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as both a municipal authority member and planning commission member. The main prohibition under the Ethics Act and the opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alphano, Opinion 80 -007. In the above situation, it does not appear that you would be serving entities with interests which are adverse to each other. As to the matter of EDM Consultants, since you are the principle owner of EDM, it is clear that EDM is a business with which you are associated as that term is defined under the Ethics Act. However, since you are a member of the planning commission Mr. William K. Dingman October 26, 1988 Page 5 and North Penn Water Authority, it is clear that your governmental body is the Water Authority and the Commission but not Towamencin Township. Therefore, under these facts and circumstances, it appears that Section 3(c) of the Ethics Act would not be applicable in this situation, because Towamencin Township is not your governmental body. Although the Ethics Act would not preclude your simultaneous service on the water authority and planning commission and would not preclude the employment by the township of your business, EDM Consultants, you would be restricted under Section 3(a) of the Ethics Act if any matter concerning EDM Consultants would come before you in your capacity as a public official or if EDM were representing clients and presenting matters before your governmental body. In that case, Section 3(a) of the Ethics Act would require that you abstain, that you note your abstention of public record together with the reason for your abstention. In this regard, it is noted that you have stated that you would abstain in such situations. 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 member of the North Penn Water Authority you are a public official subject to the provisions of the State Ethics Act. Based upon the facts and circumstances outlined above, the Ethics Act would not preclude you as a water authority member from simultaneously serving on the township planning commission. Further, Section 3(a) of the Ethics Act would not prohibit the employment of your business EDM Consultants by the township since your governmental bodies are the water authority and the planning commission but not the township. If any matter concerning EDM Consultants or clients represented by EDM Consultants would come before your governmental body, you must abstain, note your abstention of public record together with the reason for your abstention. 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. Mr. William K. Dingman October 26, 1988 Page 6 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. Sincerely, Vincent 4#. Dopko, General Counsel