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HomeMy WebLinkAbout91-544 BuseckSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 4, 1991 Mr. Donald C. Buseck Quinn, Gen, Buseck & Leemhuis, Inc. 222 West Grandview Boulevard Erie, PA 16505 -4508 Re: 91 -544 Conflict, Public Official /Employee, Municipal Authority, Vote, Water Line Extension, Assessments, Member Owning Property in Area of Water Line Extension. Dear Mr. Buseck: This responds to your letter of April 19, 1991, 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 a member of a municipal authority from participating or voting as to a water line extension and the manner of assessing property owners serviced by the water line extension when the authority member owns property in the area to be serviced. Facts: Your office represents the Summit Township Water Authority (Authority), a municipal authority located in Erie, Pennsylvania, of which Robert Heiges is a board member. The Authority is considering an extension of a water line along Oliver Road in Summit Township with contemplated service along the Oliver Road Extension to include a proposed residential subdivision and the area vocational - technical school. Heiges owns property along Oliver Road in the area of the contemplated water line extension which property would be serviced by such water line extension if the project is undertaken. The abutting property owners would be assessed for the cost of the extension line which would be determined by the Authority through some type of formula assessment which could be based upon front footage assessment or on the basis of equivalent dwelling units and connection fees. You inquire as to whether Mr. Heiges could vote on line extension and the method by which the abutting property owners would pay for the service. You also inquire as to whether Mr. Heiges could participate in the Authority discussions Mr. Donald C. Buseck Page 2 concerning the project. You suggest that while voting on the project which abutting land owners could be assessed would appear to be a conflict for Heiges, you assert that Heiges would be treated the same as other members of the subclass affected by the water line extension. Regarding participating in discussions of the Authority concerning the project, you argue that Mr. Heiges should have the same rights as the public in terms of commenting on the proposed water line extension as the other land owners in the township, and his membership on the authority should not restrict him from discussions and comment on public meetings. You restate that Mr. Heiges should not be treated any differently than any other members of the subclass affected by the water line extension. You conclude by inquiring as to whether membership on the Authority by Heiges will result in his giving up his rights to voice an opinion as an affected land owner. Discussion: As an authority member for Summit Township Water Authority, Robert Heiges a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. 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. Mr. Donald C. Buseck Page 3 The actual of which is duties and public office "Authority of office or employment. power provided by law, the exercise necessary to the performance of responsibilities unique to a particular 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 Mr. Donald C. Buseck Page 4 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 to that effect with the person recording the minutes or supervisor. In applying the above - quoted provisions of the Ethics Law to the instant matter, Robert Heiges would have a conflict in this matter regarding the proposed water line extension since his voting or participating upon the project or the assessment certainly would have a private pecuniary impact upon him as a property owner in that particular area of the township which would be serviced by the extension. Accordingly, Heiges could not participate or vote as to the water line extension or as to the manner of making the assessments as to the property owners. Such participation or voting is clearly a use of the authority of office and involves a private pecuniary benefit not only in the enhancement of the value of the property if the water line extension is approved but also as to the manner of assessing the property owners which could affect any particular property owner in that area more or less depending upon the manner in which the assessments will be made. Dettra, Opinion 89 -021. Although it is suggested that Robert Heiges would not have a conflict in light of the exclusionary language within the definition of conflict, such would not be the case in the instant matter, since property owners in the area of the proposed water line extension would not form a true subclass within the intendment of the definition of conflict. In this regard, the Commission in Cappabianca, Opinion 89- 014 -R2, held that members of the General Assembly could not rent buildings to themselves which they privately owned for the purposes of maintaining a legislative district office. The Commission in that case specifically rejected the argument that the members of the General Assembly who rent to themselves would be a subclass consisting of landlords. Since the Commission found that such was not a valid subclass. In addition, in Mihalik, Opinion 90 -002, the Commission determined that a township supervisor could not vote upon a comprehensive sewage plan for the township in light of his land holdings as to which an agreement existed whereby a partnership had an option to purchase the property. Although the supervisor argued that he was a member of a subclass consisting of land owners in the municipality, the Commission rejected the argument by noting as follows: "It is suggested, however, that Supervisor Diffenbacher would not have a conflict based upon the exclusionary language within the conflict definition regarding actions which affect to the same degree a Mr. Donald C. Buseck Page 5 class consisting of the general public or a subclass consisting of an industry, occupation or other group which would include the public official or a member of his immediate family. Harold Diffenbacher, as the brother of Supervisor Diffenbacher, is a member of his immediate family as that term is defined under the Ethics Law. "We do not believe that the exclusion is application in this case. The situation before us does not involve a supervisor voting upon a comprehensive sewage plan that would affect him to the same extent as all other land owners that would be subject to the plan. Supervisor Diffenbacher and his brother have entered into the agreement to sell the option to purchase to a general partnership. As we noted above, the comprehensive sewage plan will undoubtedly affect the value of the property for its development potential as well as influence to some extent the decision of the general partnership as to whether they will exercise the option to purchase the land. Further, the extensive land holdings of Supervisor Diffenbacher and his brother do not place them in the class of the typical residential lot owner within the township. It is clear that the action of Supervisor Diffenbacher, if he were to vote on the comprehensive sewage plan, would be an action which would not affect him to the same degree as the class or subclass." In the instant matter, there is not a true subclass but rather certain property owners who would be affected by the water line extension. Accordingly, since the exclusion does not have application, Heiges, as noted above, would have a conflict and could not participate or vote. As to whether Heiges could participate in discussions just as members of the public, the Commission has held that when a conflict exists, the restriction is not limited to abstaining from a vote but also encompasses participating in the matter. Miller, Opinion 89 -024. Finally, as to the concern that Heiges would give up his rights to voice an opinion as an affected landowner, the Commission has determined that whenever a public official's private interest is in conflict with the public interest, the public interest is paramount. See Crisci, Opinion 89 -013. In light of the conflict of Robert Heiges in this case, he would be required to comply with the disclosure requirements as outlined in Section 3(j) 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 Mr. Donald C. Buseck Page 6 such. 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: "q Authority Member for Summit Township Water Authority, Robert Heiges is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would preclude Robert Heiges from participating or voting in a matter of a contemplated water line extension and the manner of making assessments for the extension since he owns property in the area which would be serviced by the proposed water line extension. In addition, the disclosure requirements of Section 3(j) of the Ethics Law outlined above must be satisfied. 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 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 52.12. VJD/slj Sincerely, n . Vincent . Dopko, Chief Counsel