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HomeMy WebLinkAbout92-520STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 31, 1992 Richard E. Deetz, Esquire 1111 North Fifth Street 92 -520 Stroudsburg, PA 18360 Re: Conflict, Public Official /Employee, Private Employment or Business, Township Supervisor, Business With Which He Is Associated, Independent Contractor Employed by Developer. Dear Mr. Deetz: This responds to your letters of November 26, 1991 and December 13, 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 who is employed as an independent contractor by a developer in the township, with regard to matters of the developer and /or its clients which are pending before the board of supervisors. Facts: As Solicitor to the Board of Supervisors of Middle Smithfield Township, Monroe County, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of Mr. Jay E. Huffman, who is one of the three elected Supervisors for Middle Smithfield Township. Mr. Huffman has been employed as an independent contractor by a developer in the Township, which developer has official applications pending before the Board of Supervisors. You note that in the event that the other two Supervisors would vote in opposition to each other, there would be a deadlock situation. You state that since the Board of Supervisors is a three member board, it is not clear how the official application of the developer would be resolved in such a situation. You specifically inquire as to whether Mr. Huffman, as the third Supervisor who would have disclosed the interest may vote in such a situation based on the Rule.of Necessity. Mr. Richard E. Deetz January 31, 1992 Page 2 Discussion: As a Township Supervisor for Middle Smithfield Township, Monroe County, Pennsylvania, Mr. Jay E. Huffman 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 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. Mr. Richard E. Deets January 31, 1992 Page 3 "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 anything 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 been 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 Mr. Richard E. Deetz January 31, 1992 Page 4 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 publicly disclose the abstention and reasons for same, both orally and by filing 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. In applying the above provisions of the Ethics Law to the narrow issue which you have raised, Section 3(a) of the Ethics law prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. It is clear that the developer which employs Mr. Huffman is a "business with which he is associated" as that term is defined in the Ethics Law. It is therefore clear that under Section 3(a) of the Ethics Law, Mr. Huffman would have a conflict of interest as to matters which would come before him as a public official involving the developer and /or its clients. Miller, Opinion 89 -024. Such matters would include, but not be limited to, official applications pending before the Board of Supervisors. In each instance of a conflict of interest, it will be necessary that Mr. Huffman be removed from such matters. As noted in Miller, matters which come before a public official /public employee involving his private employer and /or its clients place the public official4public employee in a situation where he is faced with conflicting interests. In his capacity as an employee of a private firm, his duty is owed to the private employer and to its clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the governmental body with the duty being owed to the public rather than to private clients. Furthermore, applying the reasoning noted in Miller, supra, at 3, persons seeking the approval of the governmental body would probably favor doing business in a private capacity with a firm which Mr. Richard E. Deetz January 31, 1992 Page 5 employs a member of the governmental body, knowing that the public official /public employee might then be in a position to act favorably toward them. ror all of the above reasons, the Etnics Law would prohibit Mr. Huffman from voting, participating in deliberations, or otherwise using the authority of office, in matters pertaining to the developer and /or its clients. Mr. Huffman must divest himself` from any participation in such matters, and in each instance where a conflict of interest arises, Mr. Huffman must observe the disclosure requirements of Section 3(j) as set forth above. You specifically inquire as to whether Mr. Huffman may utilize the exception to Section 3(j) of the Ethics Law to vote, regardless of the existence of a conflict, because he happens to be on a three - member Board. Assuming that Mr. Huffman would properly abstain and would satisfy the disclosure requirements of Section 3(j), then if the remaining two Supervisors would cast opposing votes, the following language of Section 3(j) would apply: • 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 boat' 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, if Mr. Huffman meets the preceding conditions of fully abstaining and fully meeting the disclosure requirements of Section 3(j), then he would be permitted to vote to break a tie vote of the other two Supervisors. However, the exception which permits Mr. Huffman to vote despite a conflict is not a license to violate the public trust. The Legislature has declared that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust." 65 P.S. 5401. In voting, Mr. Huffman may not violate the public trust. Furthermore, Mr. Huffman may do no more than vote. The exceptions under Section 3(j) may not be extended to any other activities. Rather, Mr. Huffman would continue to be subject to all other restrictions under Section 3(a) of the Ethics Law since Mr. Richard E. Deetz January 31, 1992 Page 6 he would have a conflict of interest. He cannot use the authority of office in any way other than to vote. Prohibited activities would include but not be limited to such conduct as lobbying behind the scenes, participating in any such discussions, or any other participation regarding these issues. Mr. Huffman would also continue to be subject to the restrictions of Sections 3(b) and 3(c). You will note that the procedures to be followed are as set forth in Section 3(j) of the Ethics Law itself, rather than the common law Rule of Necessity. 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. Conclusion: As a Township Supervisor for Middle Smithfield Township, Mr. Jay E. Huffman is a public official subject to the provisions of the Ethics Law. The developer which employs Mr. Huffman is a business with which he is associated. In his capacity as a public official, Mr. Huffman would have a conflict of interest as to any matter involving the developer and /or its clients, which matters would include, but would not be limited to, official applications pending before the Board of Supervisors. In each instance of a conflict of interest, Mr. Huffman would be required to abstain from any participation of any nature whatsoever and to publicly announce his abstention and reasons for same, both orally and in a written memorandum filed with the secretary recording the minutes. If Mr. Huffman properly abstains and fully observes the above disclosure requirements of Section 3(j) as to conflicts of interest, under the exceptions of Section 3(j) of the Ethics Law, as a member of a three- member Board which will be unable to take any action on such matters if he is unable to vote, Mr. Huffman may vote. In so voting, Mr. Huffman may not violate the public trust. Furthermore, Mr. Huffman may do no more than vote on these matters; the exception of Section 3(j) only permits him to vote and he may not use the authority of office in any way other than the aspect of voting. Mr. Huffman will continue to be subject to all other restricted activities under Sections 3(a), (b), and (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 Mr. Richard E. Deets January 31, 1992 Page 7 evidence of good faith conduct in proceeding, providing the requestor the material facts and committed reliance on the Advice given. such. This letter is a public record incerely, any other civil or criminal has disclosed truthfully all the acts complained of in 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. Vincent J. Dopko Chief Counsel