HomeMy WebLinkAbout91-603 ScheffeySTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783-1610
ADVICE OF COUNSEL
December 6, 1991
Mr. James D. Scheffey, Esquire
Wrigley, Yergey, Daylor, and Scheffey
P.O. Box 776
Pottstown, Pa. 19464 -0776
91 -603
Re: Conflict, Public Official /Employee, Township Supervisor,
Immediate Family, Brother, Business With Which Associated,
Law Firm, Legal Representation, Litigation Against
Governmental Body, Vote, Use of Authority of Office.
Dear Attorney Scheffey:
This responds to your letter of October 9, 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
Supervisor with regard to matters involving litigation against
the. Township where the Supervisor's brother is an attorney and
represents the opposing party in the lawsuit.
Facts: As Solicitor for Washington Township, Berks County,
Pennsylvania, you seek the advice of the State Ethics Commission
on behalf of the Chairman of the Board of Supervisors, Warren H.
Prince, Esquire. Since 1985 or 1986, prior to your serving as
Solicitor for the Township, the Township has been involved in
litigation with Mr. Neal Toms in a curative amendment
proceeding. Procedurally, Mr. Toms' request for a curative
amendment had been denied by the Court of Common Pleas
of Berks County, but in January, 1989 the Commonwealth Court
reversed that decision and remanded the case to the Court of
Common Pleas for a determination as to whether the property
involved could comply with all pertinent area and set -back
requirements. Since the remand of the case, there have been some
discussions with Mr. Toms' attorney as to resolving the case, but
those discussions have not resulted in a settlement.
Throughout the case, Mr. Toms has been represented by Paul
A. Prince, Esquire who is the brother of Warren H. Prince,
Esquire. Until approximately twelve to eighteen months ago,
Warren Prince and Paul Prince practiced law together with their
" i
James D. Sheffey
December 6, 1991
Page 2
father in the firm of Prince and Prince, but Warren Prince
subsequently left the firm and has been practicing as a solo
practitioner for the past twelve to eighteen months.
You note that Paul Prince previously solicited an opinion
from a committee of the Disciplinary Board as to what his
involvement, or his brother's involvement, should be at the time
that Warren Prince was sworn into office as a Township Supervisor
in January, 1988. You have submitted a copy of the resulting
opinion penned by Michael H. Reed of Pepper, Hamilton & Scheetz,
dated February 2, 1988 (designated as regarding Inquiry No. 88-
10), which opinion is incorporated herein by reference. It is
noted that the incorporated opinion specifically did not address
the conduct of Warren Prince in his role as a Township
Supervisor. See, Opinion Letter, February 2, 1988 at 2.
Nevertheless, you state that in accordance with that opinion,
Warren Prince has recused himself, and continues to recuse
himself, from any involvement in this case.
You specifically inquire as to whether Warren Prince may now
become involved in discussions and formal action regarding this
case since he is no longer actively engaged in a law partnership
with his brother. You cite Section 3(a) of the Ethics Law and
acknowledge that the definition of the term "immediate family"
includes a brother. You state that the issue to be resolved is
whether the language of Section 3(a) includes a situation where
a brother of a member of the governing body represents, as legal
counsel, an individual who is involved in litigation with the
municipality. Should there be a conflict of interest, you
further inquire as to whether Warren Prince may become involved
if the other two Supervisors reach a stalemate in the decision
making process.
Discussion: As a Township Supervisor for Washington Township,
Warren H. Prince, Esquire 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:
James D. Sheffsy
December 6, 1991
Page 3
Stction 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 of 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.
"Immediate family." A parent, spouse, child,
brother or sister.
"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
James D. Sheffey
December 6, 1991
Page 4
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, and to orally' announce his
James D. Sheffey
December 6, 1991
Page 5
abstention and the reasons for same as well as file a written
memorandum to that effect with the person recording the minutes
or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s), then in that
event participation is permissible provided the disclosure
requirements noted above are followed. gpat, Mlakar, Supplemental
Advice 91- 523 -S.
The above provisions of the Ethics Law will be applied to
address your specific inquiries seriatim.
It is clear that Warren Prince, as Chairman of the Board of
Township Supervisors, would have a conflict of interest in
matters regarding the litigation against the Township for which
his brother, Paul Prince, is acting as counsel for the opposing
party. As you correctly noted, Paul Prince, as the brother of
Warren Prince, is 4 member of the Chairman's " immediate family"
as that term is defined in the Ethics Law. Furthermore, although
Warren Prince is no longer practicing• law with his brother and
father, that law firm continues to be a "business with which he
is associated" as that term is defined in the Ethics Law. Were
Chairman Prince to participate in matters involving the lawsuit
against the Township, such conduct could result in a private
pecuniary benefit for a member of his immediate family (brother)
and /or for a business with which he is associated (law firm).
Having concluded that there would be' a conflict of interest
for Chairman Warren H. Prince, Esquire under these circumstances,
your second specific inquiry must now be addressed. It would
appear from the facts which you have submitted that the
Washington Township Board of Supervisors consists of only three
members. The following language from Section 3(j) of the Ethics
Law would appear to apply in this case:
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.
Thus, while it is clear that Chairman Prince must abstain from
any participation whatsoever in matters involvingr,the litigation
James D. Sheffey
December 6, 1991
Page 6
against the
party, and
Section 3(j)
Supervisors
permitted to
requirements
Township where his brother represents the opposing
must meet all of the disclosure requirements of
, should the remaining two members of the Board of
cast opposing votes, Chairman Prince would be
vote to break the tie if he had met the disclosure
of Section 3(j).
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 Second Class
Township Code and /or the Rules of Professional Conduct.
Conclusion: As Chairman of the Board of Supervisors for
Washington Township, Warren H. Prince, Esquire is a public
official subject to the provisions of the Ethics Law. Pursuant to
Section 3(a) of the Ethics Law, Mr. Prince may not use the
authority of his office or any confidential information received
by holding public office 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.
Chairman Prince's brother is a member of the Chairman's
"immediate family." The law firm which includes Chairman
Prince's brother and father is a business with which he is
associated" as defined in the Ethics Law. As a Township
Supervisor, Mr. Prince would have a conflict of interest as to
any matter involving the litigation against the Township in which
Mr. Prince's brother acts as the legal representative of the
opposing party. In each instance of a conflict of interest,
Chairman Prince must abstain and must publicly state, both
orally and in a written memorandum filed with the secretary
recording the minutes, his abstention and the reasons for same.
As a member of a three - member governing body of a political
subdivision, should the remaining two members of the Board of
Supervisors cast opposing votes, Chairman Prince having abstained
would be permitted to vote to break the tie vote if disclosure
had been made as required by Section 3(j) 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
the material facts and committed the acts complained of in
reliance on the Advice given. N '�
James D. Sheffey
December 6, 1991
Page 7
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 52.12.
ncerely,
Vincent J. Dopko
Chief Counsel