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HomeMy WebLinkAbout90-601-S WilliamsonDear Mr. Williamson: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 11, 1990 Mr. J. Michael Williamson 90 -601 -S Williamson, Coploff & Hanna 136 East Water Street Lock Haven, PA 17745 Re: Conflict of Interest, Public Official, Contracting with Governmental Body, Municipal Authority, Garbage Disposal Firm, Landfill Operated by Authority. This responds to your letters of October 19, 1990 and October 29, 1990, in which you requested additional advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a member of a municipal authority when a garbage disposal firm, a business with which the member is associated, disposes of garbage at a landfill operated by the authority which sets rates for garbage disposal. Facts: By letters of August 20, and September 13, 1990, you requested advice from the State Ethics Commission as solicitor for the Clinton County Solid Waste Authority (Authority) regarding the conduct of Authority member Gayle Love regarding his voting on various issues which might come before the Authority. The basis for your concern related to the fact that Mr. Love is a principal in a garbage disposal firm which contracts with the Authority. On October 17, 1990, Advice of Counsel, 90 -601, which is incorporated herein by reference, was issued which set forth the restrictions of Section 3(a), 3(b), 3(c), and 3(f) of the Ethics Act and concluded that Mr. Love could not vote under Section 3(a) of the Ethics Act as to any contract entered into by the business with which he was associated and the Authority, that he would have to observe the disclosure requirements of Section 3(j) of the Ethics Act and that the open and public process of Section 3(f) of. the Ethics Act would have to be complied with if the contract were over $500 or more. Although the initial advice request cited Section 312(D) of the Municipality Authorities Act, you were specifically advised that the issued Advice did not render an opinion in terms Mr. J. Michael Williamson Page 2 of the applicability of that provision or any other provision of the Municipality Authorities Act and hence only involved an interpretation of the Ethics Law. Thereafter by letter October 19, 1990, you indicated that the advice did not express in sufficient detail the concerns you had regarding Mr. Love's voting on certain issues which could directly affect him as garbage hauler. In particular, at that time you then raised the issue of whether Love could vote on setting of rates since his firm along with other users of the landfill would have to pay those rates; in addition, you inquired as to whether Love would be precluded from voting on hours of operation since his business would be affected by changes in operating hours. Finally you inquired as to whether Love would have to disclose all adverse ramifications of potential votes to his business operation when such adverse consequences might not be readily apparent to the public. Following the request for additional information and clarification, you submitted a letter dated October 29, 1990, wherein you advised that the Authority operates a DER approved landfill in McElhatten, Clinton County which accepts municipal waste from independent haulers who contract with their customers. In addition, the Authority accepts DER approved residual waste. Gayle Love is one of three principals in a garbage disposal firm known as Love's disposal which contracts with private individuals to haul their municipal waste to the Authority landfill. As a recent appointee to the Authority by the County Commissioners, Love does not contract directly with the Authority; as a customer Love is charged and pays rates, being the same rates charged for all haulers dumping at the landfill. Every time a salary increase is given at the Authority or action is taken or a vehicle is required which necessitates the spending of funds by the Authority, that expenditure has a direct effect upon rates which in turn. affects Love's profit margin. You then request guidelines as to the parameters under which Love may vote on matters before the Authority. You ask whether Love would be precluded from voting on matters as long as he is not the only individual affected by rates. In addition, you request advice as to whether Love would be precluded on matters which might have a marginal effect upon rates and therefore his profit margin. Lastly you request advice as to whether Love can be given guidance on approaching these issues if the Commission is unable to provide detailed responses as to the first inquiries. Discussion: As member for Clinton County Solid Waste Authority, Gayle Love is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Mr. J. Michael Williamson Page 3 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 performance of duties and responsibilities unique to a particular public office or position of public employment. "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 has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public Mr. J. Michael Williamson Page 4 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 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 Mr. J. Michael Williamson Page 5 to that effect with the person recording the minutes or supervisor. In applying the provisions of Section 3(a) of the Ethics Act quoted above to the instant matter, Gayle Love would be precluded from participating or voting on matters before the Authority which would result in a private pecuniary benefit to himself, member of his immediate family, or business with which he is associated. In this particular case, the focus of the inquiry must relate to Love individually in his business since decisions which would affect the rate base for the Authority would directly relate to the charges that Love's company would have to pay as rates for dumping garbage and which would directly impact upon the profit that Love would receive as a principal in the garbage hauling business. As to your inquiry as to whether Love could vote on rates because he would not be the only individual affected, the exclusion within the definition of the term conflict would not have application in this case because Love as an Authority member could vote on rates affecting the garbage haulers which would not be considered a class or sub -class under the definition. See Cappabianca, Opinion 89- 014 -R, wherein the Commission held that a state representative could not rent, as a district office, a facility which the representative privately owned; although it was argued that the members of the General Assembly who rented their own buildings for legislative district offices compromised a sub - class, the Commission rejected that argument on the basis that no sub -class existed but rather there were only individual members who had legislative district offices in their own buildings as to which they charged their legislative account for rent. Thus, the intent of the exclusion was to cover true class /sub -class situations such as a public official voting upon a comprehensive sewage plan which would affect him to the same extent as all other landowners in the municipality. Mihalik, Opinion 90 -002. Turning to your second inquiry as to whether Love could vote on matters which would have even a "marginal effect" on rates, a general response may only be formulated since the facts of any particular case will determine whether the effect has an impact which could be considered a pecuniary benefit under Section 3(a) of the Ethics Act. In light of the above and as a matter of practical guidance, Love should not participate and vote as to: setting of rates; limiting the quantity or types of garbage which may be deposited at the landfill or which may require DER approval in that regard; operating hours of the Authority, assuming that such action would Mr. J. Michael Williamson Page 6 affect his business profit margin in terms of possibly paying overtime or additional expenses due to hauling at restricted hours; imposing limitations upon the size of trucks or tires or the size or weight (loaded) of the box on the truck which may enter the landfill; participating or voting on matters involving the landfill manager; participating on matters which could negatively impact upon competitive garbage haulers (Pepper, Opinion 87 -008) and lobbying DER or the General Assembly on matters which would affirmatively impact upon Love's business. In such cases, the disclosure requirements of Section 3(j) must be followed. Since it is impossible to foresee any given factual situation which might arise in the future, the above response is general. In the event that some future situation arises wherein a question exists as to whether a conflict would exist within the above general parameters, you have the right to request additional advice from this Commission. 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 Municipality Authorities Act. Conclusion: As member for Clinton County Solid Waste Authority, Gayle Love is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Act would preclude Gayle Love from participating or voting on Authority landfill matters in the general areas outlined above when Love is a principal in a Garbage Disposal Firm which dumps municipal waste at the Authority landfill. The disclosure requirements of Section 3(j) outlined above must be followed. 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. 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 Mr. J. Michael Williamson Page 7 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 52.12. hcent J. Dopko, Chief Counsel