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HomeMy WebLinkAbout88-669 O'DonnellMr. Thomas J. O'Donnell 401 Heritage Lane Nazareth, PA 18064 Dear Mr. O'Donnell: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 19, 1988 88 -669 Re: Simultaneous Service, Second Class Township Supervisor, Employment in Township This responds to your letter of November 27, 1988, in which you request advice from the State Ethics Commission. Issue: You ask whether the State Ethics Commission presents any restrictions or prohibition upon a second class township supervisor from obtaining employment with a business that is wholly or partly within the township. Facts: You state that you are currently a township supervisor in Lower Nazareth Township, Northhampton County, and that your term of office runs from 1984 through 1989 wherein you anticipate that you will seek re- election. You state that you are currently in the process of sending out resumes to obtain full employment from businesses that have part of their operations in the township. After expressing your view that the Ethics Act would not restrict you from accepting employment with a business entity that is wholly or partly in the township, you seek a written opinion for clarification. You state that you can not be specific at this time because you did not know if you would be offered a job and, if so, whether you would accept it. You then inquiry as to what action you should take as to your voting if a business entity as to which you sent out a resume comes before the township board. Specifically, after noting that Lower Nazareth Township has a three member board of supervisors, a planning commission made up of five members that makes recommendations of approval or rejection of plans to the board and a three member zoning board, you note that the township has an approved subdivision ordinance in process of being completed by an independent consulting firm to do a comprehensive planning and zoning update with he Mr. Thomas J. O'Donnell December 19, 1988 Page 2 township engineering firm doing the 537 sewage update. You then state that you feel your duties are best described as managerial action; that the businesses that you will be sending resumes to are multi -state businesses which have a very minor part of the operation in Lower Nazareth Township and that you do not have any stocks or investment of any kind in any of these corporations as per a review of your Statement of Financial Interests. After stating that if you would accept employment with any of these businesses wherein you would seek a more specific opinion, you conclude by requesting advice as to your voting on issues that would come before the board. Discussion: As a township supervisor in Lower Nazareth Township, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code S1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. 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, 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. Mr. Thomas J. O'Donnell December 19, 1988 Page 3 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. 5402. 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, rolitical 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. As to your specific inquiry, generally the Ethics Act would not preclude you from obtaining outside employment. See Goodman, Opinion 88 -001. However, you could not use the status of your public office or confidential information as a means of obtaining the outside employment. Likewise, as noted, you could not offer or receive the promise of future employment based upon the understanding that your official judgment or actions would be influenced thereby. Additionally, if you should send out a resume to a given business and then that business would have some matter before the township board of supervisors or would have some matter before the planning commission that would in turn have to come before the township board of supervisors, you should not vote in that matter. In addition you must note your abstention of public record together with the reason for your abstention. See Sowers, Opinion 80 -050. Mr. Thomas J. O'Donnell December 19, 1988 Page 4 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 Second Class Township Supervisor in Lower Nazareth you are a public official subject to the provisions of the State Ethics Act. Although the Ethics Act would not preclude you from seeking outside employment with a business that would operate in whole or part in your township, you may not use public office or confidential information as a means of obtaining outside employment and additionally you may not receive anything of value, including the promise of future employment, on the understanding that your official conduct would be influenced thereby. In the event that one of your prospective employers would have a matter before the township, you should abstain in that matter, 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. 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 S2.12. Sincerely, Vincent . Dopko, General Counsel