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HomeMy WebLinkAbout92-658Mr. Barry W. Scherer 465 Lehigh Avenue Palmerton, PA 18071 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 18, 1992 92 -658 Re: Conflict, Public Official /Employee, Borough Council Member, Private Employment or Business, Use of Authority of Office or Confidential Information, Business with which Associated. Dear Mr. Scherer: This responds to your letter of November 12, 1992, 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 council member from being employed in a private capacity in addition to public service, or with regard to matters before the borough council involving his employer. Facts: As a Member and President of Borough Council for the Borough of Palmerton in Carbon County, Pennsylvania, you seek an advisory from the State Ethics Commission. You are employed as a Safety Supervisor for Horsehead Resource Development Company, Inc. (HRD), located in Palmerton. HRD is a division of Horsehead Industries, Inc. (HII). Zinc Corporation of America (ZCA) is another division of HII, with corporate headquarters located in Monaca, Pennsylvania. There are also ZCA operations located in Palmerton. You state that a large zinc residue pile which lies on company property has been designated a Superfund Site, listed on the National Priorities List in December, 1982. ZCA is the primary potential responsible party regarding clean up /remediation costs. The Borough has also been named as a possible potential responsible party due to municipal solid waste dumped on the pile many years ago. You state that there have been many public meetings held by the Environmental Protection Agency (EPA) and Pennsylvania Department of Environmental Resources (DER) regarding the status and clean up of the pile. Heavy metals contamination on the pile and also in the municipality are a concern of the environmental Mr. Barry W. Scherer December 18, 1992 Page 2 agencies. The main focus within the municipality is whether the heavy metals in the soil pose a health threat. There are two organized groups in the Borough. One advocates a complete clean up and remediation of heavy metals contaminated soil. The other group advocates a decision to clean up or remediate based on a health study of which the Borough is currently awaiting the results. You indicate that Borough Council has taken no official position on the Superfund matter, having elected to remain neutral so as to not give the appearance of officially favoring the pro or anti clean up groups. Council has been instrumental in forming a Community Task Force to review data and serve as the focal point of information distributed by federal and state environmental agencies. On October 19, 1992, the Borough Manager received a letter from the Mayor of Leadville, Colorado, containing an invitation to attend a meeting of a "panel of experts" gathered by EPA to "determine whether or not the soil -lead levels in Aspen represent a health threat, and what, if anything, should be done about it." You have submitted a copy of the letter which document is incorporated herein by reference. You state that the most important aspect of the letter is the seating of the panel of experts to review data and recommend remedial action. This was a "first" anywhere in the United States, a position never before agreed to by EPA. You and the Borough Manager discussed the letter and agreed that someone from the Borough should attend the meeting. The Manager advised Borough Council, by memorandum, of the invitation and recommended that the Borough Solicitor, the Manager and you attend. You state that you were interested in seeing if the process of EPA agreeing to seat a panel of experts was a workable option in resolving the ten -year old Superfund issue in Palmerton. You state that the Borough had no funds budgeted for the trip. The Borough Manager felt that you should still attend the meeting because of the relevance to the Borough's situation. He contacted HRD officials and advised them of the meeting and the purpose behind it. He also asked them to consider underwriting the cost of the trip for Borough officials which the company agreed to do. The Borough Manager advised Council by memorandum of the request to HRD to underwrite the trip. No one from Council raised any objections. You state that since the trip several questions have been raised by residents of the Borough. You request an advisory from the State Ethics Commission as to the following three specific Mr. Barry W. Scherer December 18, 1992 Page 3 questions: 1. Was it a violation of ethical conduct to request the company to underwrite the cost of the trip? 2. Was it a violation of ethical conduct for you to accept the company's underwriting of the trip? 3. Does your position as a Council Member conflict with your being employed by HRD and does it preclude you from voting on any matters that come before Council regarding the company? Discussion: As a Member and President of Borough Council for the Borough of Palmerton, you are a public official as that term is defined under the Ethics Law, and hence you are 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 Mr. Barry W. Scherer December 18, 1992 Page 4 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 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 Mr. Barry W. Scherer December 18, 1992 Page 5 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 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. Before applying the above provisions of the Ethics Law to the circumstances which you have submitted, it is initially noted that your first and second specific inquiries regard past conduct and therefore may not be addressed within the scope of an advisory. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Your third specific inquiry regards your prospective conduct and therefore shall be addressed. It is noted that your request for an advisory is very narrow in scope, and therefore this Advice shall be narrow in scope as well, responding solely to the question which you have posed in your third specific inquiry. In applying the above provisions of the Ethics Law to your third specific inquiry, you are advised that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Your employer, by definition, would be a "business with which [you are] associated." In the event that your private employer or business has a matter pending before your governmental body or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89- 024. In those instances, it will be necessary that you be removed from that process. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature -- Mr, Barry W. Scherer December 18, 1992 Page 6 including but not limited to participating in discussions, lobbying for a particular result, and voting -- and to full satisfy the disclosure requirements of Section 3(j) as set forth 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 not addressed herein is the applicability of the Borough Code. Conclusion: As a Member and President of Borough Council for the Borough of Palmerton in Carbon County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you from being employed by Horsehead Resource Development Company, Inc., but your conduct as a public official would be subject to the restrictions and qualifications as noted above. In the event that your employer would have a matter pending before your governmental body, then you could not participate in that matter and you would be required to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. 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. erely, i cent i Dopko Chief Counsel