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HomeMy WebLinkAbout91-587 AustinSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 1, 1991 Mr. Robert D. Austin, Jr. 91 -587 124 South Pennsylvania Avenue Greensburg, PA 15601 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office, Voting, Infrequent Business Services Rendered. Dear Attorney Austin: This responds to your letter of September 10, 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 Borough Councilman with regard to participating in Council discussions, deliberations, or votes relating to an ongoing controversial project before Borough Council, where the Councilman provided business services to one of the parties on two occasions and also provided a business service to an individual who rents space in the building where the other party is headquartered. Facts: As Solicitor for the Council of the Borough of West Newton, you seek the advice of the State Ethics Commission as to whether Borough Councilman Philip Dave would have a conflict of interest which would prohibit him from participating in Council discussions, deliberations, or votes relating to an ongoing controversial project before the Council. Your inquiry focuses upon two instances where Councilman Dave rendered private business services to one of the parties to the controversy, and one instance where Councilman Dave rendered a private business service to an individual who rents space in the building where the other party is headquartered. The history of the controversy is as follows. In approximately 1988, a developer in the Borough sought Council's assistance in seeking state grants for various infrastructure improvements including a water line and roads on a property he was developing in the Borough. You state that over a period of months and years, different proposals were placed before Council and a state grant was subsequently given to the Mr. Robert D. Austin, Jr. October 1, 1991 Page 2 Borough in the amount of $500,000.00 for the purpose of putting in an "access road" and other site improvements. Although the developer initially proposed a road which would end in a cul -de- sac at the South side of his property line, he later changed his mind and decided he wanted a "through -road" which would connect his property with a main thoroughfare. The through -road would utilize what the developer believes to be a public right -of -way over what is believed to be a paper street, referred to as "Low Water Street," which is now being claimed by an adjacent property owner. During this period of time there have been heated discussions in Council over "through -road vs. cul -de -sac" with threatened litigation by the developer against the Borough as well as against the adjacent property owner. In May, 1990, the adjacent property owner filed with Borough Council a Petition to Cancel the Laying Out of Low Water Street, which is the "street" providing the alleged public right -of -way. You state that it appears that the developer contends that the adjacent property owner's request was meant to prevent the Borough or developer from utilizing the alleged public right -of- way for a through -road, and the developer has requested that the Petition be denied. The Borough has taken testimony at a public hearing on the adjacent property owner's request and a decision by the Borough Council is presently pending. With respect to Councilman Dave's possible conflict of interest, Councilman Dave has advised you that in the Spring or Summer of 1989, Mr. Dave went with the adjacent property owner at his request to Pittsburgh, Pennsylvania to advise him regarding the condition of a phase- rotator machine which the adjacent property owner was considering purchasing. In the Fall of 1990, pursuant to the request of the adjacent property owner who informed Mr. Dave that he had purchased the machine, Mr. Dave helped to install the machine and was paid the sum of $25.00. Additionally, in August of 1990, Councilman Dave repaired a grinding machine for an individual who rents space in the building where the developer has its headquarters. You state that other than the two incidents cited above, Councilman Dave states that he has no business relationship of any kind with either the adjacent property owner or anyone associated with the developer. Councilman Dave states that in February of 1991, he asked you as Solicitor if he should do any work "down there." You at that time advised Councilman Dave that it would be better if he did no work of any kind for either the adjacent property owner or anyone associated with the developer. You state that in February Mr. Robert D. Austin, Jr. October 1, 1991 Page 3 of 1991, you were not aware that Mr. Dave had already done the work set forth above. Based upon Councilman Dave's involvement with the adjacent property owner as set forth above, another Councilman has challenged Mr. Dave's right to participate in Council discussions, deliberations, or votes with respect to the ongoing dispute between the developer and the Borough and between the developer and the adjacent property owner, as well as the adjacent property owner's request which is pending as set forth above. The basis for the Councilman's challenge is stated to be the Ethics Law. Therefore, you have stated the issue to be whether or not Councilman Dave, because of the facts you have submitted, is barred in the future under the Ethics Law from participating in such Council discussions, deliberations, and votes on any of the various issues which are coming before Council with respect to the said project and the ongoing dispute between the developer, the adjacent land owner and /or the Borough. Based upon all of the above, you seek the advice of the State Ethics Commission. Discussion: It is initially noted that your request for advice may only be addressed with regard to prospective conduct. As a Council Member for the Borough of West Newton, Mr. Philip Dave is 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 Mr. Robert D. Austin, Jr. October 1, 1991 Page 4 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 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 Mr. Robert D. Austin, Jr. October 1, 1991 Page 5 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 to that effect with the person recording the minutes or supervisor. Turning to your specific inquiry, you have specifically represented that other than the few incidents cited within your inquiry, Councilman Dave has no business relationship of any kind with either the adjacent property owner or anyone associated with the developer. This Advice expressly assumes that Councilman Dave has no business relationship of any kind with the developer either. Based upon the facts as you have submitted them there would not appear to be a conflict of interest under the Ethics Law with regard to Councilman Dave's prospective participation in Council discussions, deliberations, or votes, either with regard to the ongoing dispute between the developer and the Borough and the developer and the adjacent property owner, or with regard to the adjacent property owner's Petition to Cancel the Laying Out of Low Water Street presently pending before Council. The facts Mr. Robert D. Austin, Jr. October 1, 1991 Page 6 which you have submitted do not establish the elements of a conflict of interest as defined under the Ethics Law. Although Councilman Dave's participation in Council discussions, deliberations, or votes in these matters would be the use of the authority of his office as a public official, the submitted facts do not establish a resulting "private pecuniary benefit" to Councilman Dave, a member of his immediate family, or a business with which he or a member of his immediate family is associated as defined by the Ethics Law. The mere fact that Councilman Dave has rendered infrequent, minor business services to the adjacent property owner and to an individual who rents space in the building where the developer is headquartered, does not constitute a use of authority of office to obtain a prohibited private pecuniary benefit. This Advice expressly assumes and is conditioned upon there being no improper understandings between Councilman Dave and any of the other individuals involved which would transgress Sections 3(b) or 3(c) of the Ethics Law discussed 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 note addressed herein is the applicability of the Borough Code. Conclusion: As a Council Member for the Borough of West Newton, Mr. Philip Dave is a public official subject to the provisions of the Ethics Law. Councilman Dave would not have a conflict of interest under the Ethics Law which would prohibit him from participating in Council discussions, deliberations, or votes relating to an ongoing dispute between a developer and the Borough and the developer and an adjacent property owner, or relating to the adjacent property owner's Petition presently pending before the Borough Council, where Councilman Dave has provided two minor business services as a private citizen to the adjacent property owner and one minor business service to an individual who rents space in the building where the developer is headquartered. This Advice is expressly conditioned upon the assumption that there are no improper understandings involving Councilman Dave which would violate Sections 3(b) or 3(c) of the Ethics Law. 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 Mr. Robert D. Austin, Jr. October 1, 1991 Page 7 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 §2.12. Vincent . Dopko Chief Counsel