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HomeMy WebLinkAbout88-652 PhillipsMr. Gerald Phillips RD #3, Box 313 Gillett, PA 16925 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 29, 1988 88 -652 Re: Conflict of Interest, Township Supervisor, Using Extracted Gravel for Private Business Dear Mr. Phillips: This responds to your letter of October 10, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor from utilizing creek gravel extracted by a contractor pursuant to a DER permit for his own private excavation work. Facts: You state that you are a Ridgbury Township Supervisor who was appointed on May 9, 1988, following a resignation and that you are a self - employed excavating contractor. After noting that a representative from DER on May 3, 1988, met with the Ridgbury Township Supervisors concerning a matter of a disposal site for creek gravel and debris from the cleaning of a creek, you advise that the work is being done by a contractor hired by DER and that no Ridgbury Township labor or equipment is being used on the project. You state that the only township involvement on the project was securing rights -of -way for access to the project site which was needed by the contractor. You conclude by requesting an opinion as to whether you can use the gravel in your work since your work site is near the creek gravel extraction. Discussion: As a township supervisor for Ridgbury 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. S402; 51 PA Code §1.1. As such, you are subject to the provisions of the Ethics Act. Mr. Gerald Phillips November 29, 1988 Page 2 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 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, 109 Pa. Commw. Ct. 432, 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph 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 (9) Mr. Gerald Phillips November 29, 1988 Page 3 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. In the instant matter, it is clear that the extracted gravel would have a certain value to it and that the gravel would become the property of the township. If you were to take this gravel and use it for your own work -site, you would be obtaining a financial gain for yourself which is not authorized in law since there is no provision that would allow you, as a supervisor, to take this gravel and use it for your own personal use. Thus, under these facts, you would be obtaining a personal financial gain, consisting of the gravel, which is not authorized in law for a township supervisor. Therefore, under Section 3(a) of the Ethics Act, you may not use the gravel that is extracted from the creek by the contractor hired by DER for your own personal excavation work. Further, under Section 3(d) of the Act, such action would also create the appearance of a conflict in that you, as a township supervisor, would be obtaining and using the extracted gravel for your own personal use. You may not, under Sections 3(a) and 3(d) of the Ethics Act, use the extracted gravel for your own personal use since such action would create a conflict of interest and the appearance of a conflict of interest. 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 Ridgbury Township Supervisor you are a public official subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, you may not, as a township supervisor, use creek extracted gravel for your own personal excavation use. 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. Gerald Phillips November 29, 1988 Page 4 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, ).D16 Vincent J.'- bopko, General Counsel