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HomeMy WebLinkAbout88-672 MillerDear Mr. Miller: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 29, 1988 Mr. Howard F. Miller 88 -672 AMCP, Inc. R.D. 2, Box 5 Industrial Parkway Road Muncy, PA 17756 Re: Conflict of Interest, Second Class Township Supervisor, Wting, Business with which he is Associated, Rule of Necessity This responds to your letter of December 21, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a second class township supervisor from voting as to a connector road to an industrial park when the supervisor is a part owner of one of the businesses located within the Industrial Park. Facts: You state that you are a township supervisor in Muncy Creek Township, Lycoming County and that you are part owner of AMCP, Inc., which is a manufacturer located in Muncy Industrial Park, Muncy Creek Township, Lycoming County. Through the assistance of the Lycoming County Planning Commission, you note that the township has planned to install a 300 foot connector road from the Industrial Parkway Road to State Route 18 so as to serve the Industrial Park traffic flow and increase potential growth. You then advise that the current businesses that are in Muncy Industrial Park are Kellogs Company, ADS Drainage Systems, Inc., Charloette Pipe and Foundry, Data Papers Inc., Construction Specialties, Inc., and AMCP, Inc. You then state that the Lycoming County Planning Commission has obtained a 100% financing through the state for this project and that all preliminary applications have been completed. You then advise that Mr. Mark Murawski from the Planning Commission has advised you that the he has received final approval and needs a formal resolution at a Howard F. Miller December 29, 1988 Page 2 public meeting before December 31, 1988. After noting that one of your present supervisors was admitted to the hospital on December 20, with serious health (problems), you state that the resolution of this issue rests with you and the third supervisor. Since the supervisor who is ill will be unable to attend or vote on the issue, you request advice as to how you can resolve this problem under the Ethics Act. Discussion: As a second class township supervisor, you are a "public official" as that term is defined under the ::thics Act. 65 P.S. §402; 51 Pa. Code §1.1. 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. §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 2. Definitions. "Business with which he is associated." Any business in which the person or a member of Howard F. Miller December 29, 1988 Page 3 the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. §402. Since you are a part owner of AMCP Inc., it is clear that that company is a business with which you are associated as that term is defined under the Ethics Act. Additionally, since you would be voting on a matter of a connector road which would specifically enure to the benefit of AMCP Inc., as well as the other companies located in the Muncy Industrial Park, it is clear that you would have a conflict of interest under Section 3(a) of the Ethics Act. However, since Muncy Creek Township has a three member Board of Supervisors and since one supervisor is ill in the hospital and since you have a conflict, only one supervisor would be able to proceed; however, the township could not resolve the matter on the basis of the vote of only one supervisor. Although public officials must normally abstain in 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 conflict of interests of one or 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 member(s) under the "rule of necessity," could participate in forming a quorum; additionally he /they could vote provided the normally qualified member (or members) was present. In addition, the Commission opined that the governmental body must give advance notice to the public that matters will be considered which require the application of the "rule of necessity" and further that the public record should show the reason for the application of the rule. Therefore, in applying the rule of necessity, assuming there is no provision for this substitution of a third party or for a alternative forum to resolve the issue, the rule will operate and allow you to participate provided that advance notice be given to the public that matters will be considered which require application of the rule of necessity and further that the public record show the reason for the application of that rule. If the foregoing conditions of the rule of necessity are satisfied, then you may proceed to participate and vote subject to the qualifications as noted above. Howard F. Miller December 29, 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 Muncy Creek Township you are a public official subject to the provisions of the Ethics Act. Regarding the voting for a connector road to an Industrial Park wherein you are a part owner of a company that is located in that park, you would have a conflict of interest in voting. However, due to the fact that a second township supervisor is seriously ill and will not be able to participate, then the rule of necessity would allow you to vote provided there is no provision for the substitution of a third party or an alternative forum to resolve the particular issue. In addition, the rule of necessity would require public notice that matters will considered which require the application of the rule of necessity and further that the public record show the reason for the application of that 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. 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 52.12. Vincent J. Dopko, General Counsel