HomeMy WebLinkAbout91-596 DouglassDear Attorney Douglass:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
Mr. Gregory K. Douglass, Esquire
Whitmire, Verlihay & Douglass
2521 Darlington Road
Beaver Falls, PA 15010
ADVICE OF COUNSEL
October 22, 1991
91 -596
Re: Conflict, Public Official /Employee, Township Commissioner,
Use of Authority of Office, Vote, Increased Sewer Rates.
This responds to your letters dated April 3, 1991 (received
at this Commission on October 2, 1991 by faxed transmission) and
October 3, 1991 (faxed transmission received October 3, 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 Township
Commissioner with regard to voting on proposed increases to
monthly sewer rates, tap fees or connection charges intended to
pay part of the cost of constructing new sewers, where the
Township Commissioner is served by the existing sewer system and
would experience the same increase in his rate as would all the
other existing sewer customers.
Facts: As the Solicitor for the Patterson Township Board of
Commissioners and the Municipal Authority of the Township of
Patterson, Beaver County, Pennsylvania, you seek the advice of
the State Ethics Commission on behalf of Mr. Ronald Russell, one
of the Township Commissioners. The Municipal Authority, at the
behest of the Board of Commissioners, is planning to construct
additions to the Township sewer system this year. The Board of
Commissioners will generate funds to pay part of the cost of
constructing the new sewers by increasing the monthly sewer rates
to the existing customers in the Township. Some of the
Commissioners and some of the Municipal Authority Members will be
served by the new sewer system. The other Commissioners and the
other Municipal Authority Members are served by the existing
sewer system. Commissioner Russell is presently served by the
existing sewer system within the Township. The effect of the new
system project will be that Mr. Russell's monthly sewer rate will
increase in part, but to the same extent as the increase in the
Mr. Gregory R. Douglass, Esquire
October 22, 1991
Page 2
rate charged to all the other existing sewer customers. You
specifically inquire whether it constitutes a conflict of
interest for a Township Commissioner or a Member of the Municipal
Authority to vote on monthly sewer rates, tap fees or connection
charges, because they will be served by the new sewer system and
affected by those rates and charges.
Discussion: As a Township Commissioner for Patterson Township,
Beaver County, Pennsylvania, Mr. Ronald Russell 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
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
Mr. Gregory K. Douglass, Esquire
October 22, 1991
Page 3
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 followss
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 me 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. Gregory K. Douglass, Esquire
October 22, 1991
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 provisions of the Ethics Law to the
facts which you have submitted, it is initially noted that your
inquiry may only be addressed from the perspective of
Commissioner Russell who has authorized you to submit your
inquiry. To the extent your inquiry regards other individuals,
it is a third party request which can not be addressed.
The submitted facts specifically represent that
Commissioner Russell is only one of the system's existing sewer
customers, and that the increase in his rate will be exactly the
same as the increase in the rates of all of the other existing
sewer customers. Thus, it appears that Commissioner Russell is a
member of a subclass of existing sewer system customers in
Patterson Township, which subclass consists of more than one
member with Commissioner Russell being affected to the same
degree as all of the other members of the subclass. Because
these circumstances which you have submitted fit within the
exclusionary language of the definition of "conflict or conflict
of interest" as set forth in the Ethics Law, there would not be a
conflict of interest for Commissioner Russell in participating
and voting under these circumstances. However, this Advice is
expressly conditioned upon your representations and the
assumption that the effect upon Commissioner Russell would in no
way differ from the effect upon all of the other existing sewer
customers.
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 First Class
Township Code or the Municipality Authorities Act.
Conclusion: As a Township Commissioner for Patterson
Township, Beaver County, Pennsylvania, Mr. Ronald Russell is a
public official subject to the provisions of the Ethics Law. It
would not be a conflict of interest for Commissioner Russell to
participate and vote on monthly sewer rates, tap fees or
connection charges which are proposed to help pay the cost of a
new sewer project and which will have the effect of increasing
Mr. Gregory K. Douglass, Esquire
October 22, 1991
Page 5
Mr. Russell's monthly sewer rate to the same degree and extent as
for all of the other existing sewer customers. This Advice is
conditioned upon the submitted facts which establish that
Commissioner Russell is a member of a subclass of existing sewer
customers, which subclass contains more than one member with
Commissioner Russell being affected exactly as all of the other
members of the subclass. 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
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.
• cerely,
Vincent . Dopko
Chief Counsel