Loading...
HomeMy WebLinkAbout90-585 DEmilioMr. Matthew D'Emilio Bruce E. Dice & Associates 787 Pine Valley Drive, Suite E P.O. Box 14190 Pittsburgh, PA 15239 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 14, 1990 90 -585 Re: Conflict, Public Official /Employee, Sewer Authority, Members as Real Estate Developers, Voting. Dear Mr. D'Emilio: This responds to your letter of July 10, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon two municipal authority members voting on a DER corrective action plan as to the repair and replacement of sanitary sewer lines when they are real estate developers. Facts: As the solicitor for Plum Borough Municipal Sewer Authority (Authority) and on behalf of a Richard Kacin, Chairman and James C. Rumbaugh, Vice Chairman, you seek advice regarding certain contemplated action by these two individuals who are members of an Authority and are also both land owners and real estate developers with property holdings inside a water shed served by the Authority. The water shed currently is under moratorium from the Department of Environmental Resources (DER) and consequently new sewer construction is prohibited. The moratorium resulted because of infiltration into the sewer lines of storm water and street runoff. The prime function of the Authority is for sewage disposal in the water shed. Infiltration has been occurring over the last fifteen years which resulted in a moratorium on the constructions from DER which has also mandated a corrective action plan to curtail the infiltration. The foregoing will require the Authority to expend monies and raise rates to pay for the corrective action plan which will require repair and replacement of sanitary sewer lines. The result will benefit the water shed because the corrective action plan is designed to curtain infiltration and the moratorium will be lifted by DER whereby new development can then occur. The new development will bring new customers into the water shed by the Page 2 expansion of sewer lines. The two board members are not parties to any contracts which would be bid to perform the infiltration work nor would they bid any of the work to be done under the corrective action plan. In addition these two members, as all board members of the Authority, are not compensated for their board participation. The Authority board members will receive no direct pecuniary benefit by voting to approve the corrective action plan funding and will receive the same indirect pecuniary benefit as any other land owner who has undeveloped property in the water shed if they vote to fund the corrective action plan. You conclude by requesting advice as to whether Kacin and Rumbaugh as Authority members who are owners and developers of land in the water shed may vote to raise the sewer rates to pay for the corrective action plan. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which ,,affects. to .. _the same degree_ a . class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the Page 3 performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if Page 4 disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of Section 3(a) of the Ethics Law to the instant matter, the issue is whether the real estate holding of Kacin and Rumbaugh fall within the exclusion to the definition of conflict. The exclusion relates to action affecting to the same degree a class consisting the general public course or a sub -class consisting of an industry, occupation or other group which would include the public official. Thus, the exclusion relates to a situation where the action by the public official would affect him to the same extent and degree as any other individual in the municipality. In Markham, Opinion 85 -013, the Commission opined that a municipal official could vote on a uniform tax increase which would affect all residents within the municipality to the same degree. However, the Commission has determined that whenever public officials are not only residents but also have landholdings that are subject to sale or subject to development, then in those latter instances those officials have interests beyond those of the class of the general public within the municipality and consequently they could not vote because their actions would affect them above and beyond the typical member of the class /sub- class due to their separate land holdings. Dettra, Opinion 89- 021; Maholick, Opinion 90 -002. Therefore, since the two Authority members are also developers with property holdings inside the watershed served by the Authority, they would have a conflict. They therefore could not vote and they would have to observe the disclosure requirements of Section 3(j) outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As members for Plum Borough Municipal Sewer Authority, Richard Kacin and James C. Rumbaugh are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit Kacin and Rumbaugh from voting on a matter to expend monies and raise rates as to a DER corrective action plan when those two members are real estate developers within the water shed served by the Authority. Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. cerely, Vincent `J. Dopko, Chief Counsel