HomeMy WebLinkAbout93-503 StiehJohn T. Stieh, Esquire
Levy, Stieh, Gniewek & Blumberg
U.S. Routes 6 & 209
P.O. Box D
Milford, PA 18337
Dear Mr. Stieh:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 11, 1993
93 -503
Re: Conflict, Public Official /Employee, Township Supervisor,
Gifts, Christmas Parties.
This responds to your letters of December 2, 1992, and
December 7, 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 township supervisor
with regard to invitations to attend Christmas parties hosted by
businesses which have obtained and /or seek to obtain development
approvals from the supervisors.
Facts: As Solicitor to several local municipal authorities, a
municipality and a planning commission, you request an advisory
from the State Ethics Commission on behalf of Dr. Richard A. Maggs,
Chairman of the Westfall Township Board of Supervisors. You state
that recently, members of the Commissions and Board of Supervisors
have received invitations to attend Christmas parties hosted by a
local engineering firm and a business which recently obtained
development approvals from your clients. The engineering firm
frequently has development applications pending before your clients
for consideration and approval. You specifically inquire, whether,
by attending those holiday parties, the Commissioners and
Supervisors would in any manner be violating any ethics laws.
Discussion: Before addressing your inquiry, two points must
initially be noted. First, your request for an advisory may only
be addressed with regard to the individual who has authorized it,
specifically Dr. Richard A. Maggs, as to his prospective conduct.
Third party requests may not be addressed within the scope of an
advisory. However, you are generally advised as to planning
commissions that if a planning commission is purely advisory and
does not have the authority to expend public funds (other than
John T. Stieh, Esquire
January 11, 1993
Page 2
reimbursing personal expenses), or to otherwise exercise
governmental powers, its members are not to be considered "public
officials" as defined in the Ethics Law and therefore would not be
restricted by Section 3(a) of the Ethics Law, which pertains to
conflicts of interest.
Second, your request for an advisory may only be addressed
under the Ethics Law. The State Ethics Commission does not have
the specific statutory jurisdiction to address requests for advice
as to the applicability of other laws.
As Chairman of the Westfall Township Board of Supervisors, Dr.
Richard A. Maggs 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
John T. Stieh, Esquire
January 11, 1993
Page 3
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 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 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
John T. Stieh, Esquire
January 11, 1993
Page 4
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 applying the above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, a public official /public employee is prohibited
from using the authority of public office /.employment or
confidential information received by holding such a public position
for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
If the invitations to attend the proposed Christmas parties
would be accepted, they would constitute gifts under the Ethics
Law. There is no per se prohibition under the Ethics Law as to the
receipt of true, "no- strings- attached" gifts by a public
official /employee. See, Cooper, Opinion 92 -009 (Citing Wolfctanq,
Opinion 89 -028). Of course, a gift or gifts valued in the
aggregate at $200 or more must be disclosed on the Statement of
Financial Interests, pursuant to Section 5(b)(6) of the Ethics Law.
65 P.S. S405(b)(6). Such disclosure must include the name and
address of the source, the amount of the gift or gifts, and the
circumstances of each gift. Gifts which do not meet the aggregate
threshold of $200 need not be disclosed.
As for the question of conflict of interest, there have been
various cases before this Commission where the Commission has found
violations based upon particular facts where public officials have
accepted gifts from vendors or individuals and subsequently acted
upon matters which the donors had pending before the governmental
body. In Volpe, Order No. 579 -R and Smith, Order 578 -R, township
supervisors were found to have violated Section 3(a) of the Ethics
Act by using office to obtain an all expense paid trip to Europe
for two weeks for themselves and various family members from a
developer who had matters pending before the township. Volpe and
Smith were also found to have violated Section 3(b) of the Ethics
Act in that they received the trip to Europe based upon the
understanding that it would influence their action as township
supervisors relative to matters that were pending before the
township by the developer. In Montemavor, Order No. 574, one of
the other township supervisors who did not accept the trip to
Europe but who did travel to New York City with the same developer,
did not violate Section 3(a) where he paid for his own share of the
travel expenses and lodging but did accept opera tickets from the
developer (valued at $13 each). However, the Commission noted that
the fact that the supervisor traveled with the developer who had
been actively seeking township action on various proposals, and the
fact that he accepted opera tickets from that developer, created
the "appearance" of a conflict of interest.
John T. Stieh, Esquire
January 11, 1993
Page 5
In Feller, Order No. 576 -R, a township manager was found not
to have violated either Section 3(a) or Section 3(b) by accepting
free chlorine for his private swimming pool from the owner of a
corporation which had contracts with the township, where there was
insufficient evidence to establish the use of public office or
acceptance of any thing of value to influence his official action
relative to the receipt of the chlorine. A technical violation of
Section 3(a) was found as to Felier's acceptance and use of free
tickets for sporting events from a cable television corporation
which had contracts with the township. No violation was found as
to the acceptance of blankets, vice grips, and flasks from the
cable company which were turned over to the Pennsylvania
Association of First Class Township Commissioners. In a related
case, Zollo, Order No. 577, a township supervisor did not violate
Section 3(a) or 3(b) where he received a thirty -five pound
container of swimming pool chlorine from the township manager
(Feller) who had received it from the aforesaid owner of the
chemical company, or where he accepted three sets of free tickets
from the cable corporation two years after the contract was awarded
and before any rate increase request was submitted. In that case,
Zollo offered to pay Feller for the chlorine; did not personally
use the tickets but passed them on to others; and further denied
that his acceptance of said tickets or of the chlorine affected any
township decisions that he made.
In Houtz, Order No. 453, no violation of Section 3(a) of the
Ethics Act was found where a member of a joint authority had tons
of fill material delivered to his private property by a company
which held a contract with the authority. The Order noted that the
authority members and engineer were aware of the availability of
the fill and took no action to secure it for the authority, from
which the Commission assumed that they believed it to be of no
value to them.
Although in any given instance, the decision as to whether a
conflict of interest is presented by the receipt of a gift is
determined on a case -by -case basis, the circumstances which you
have presented would appear to fall within the line of decisions
involving nominal gifts as to which the Commission found either no
violation, a technical violation, or an "appearance" of a conflict.
It is noted that under present Act 9 of 1989, the former language
of Act 170 of 1978 pertaining to the "appearance" of a conflict no
longer exists.
Thus, based upon all of the above, you are advised that Dr.
Maggs would not have a conflict of interest merely as the result of
his attendance at the proposed Christmas parties. Additional
circumstances would have to exist before a violation of Section
3(a), 3(b), and /or 3(c) of Act 9 of 1989 would be found. This
Advice is conditioned upon the assumption that there would be no
"understandings" which would transgress Sections 3(b) and /or 3(c)
John T. Stieh, Esquire
January 11, 1993
Page 6
of the Ethics Law.
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 Chairman of the Westfall Township Board of
Supervisors, Dr. Richard A. Maggs is a public official subject to
the provisions of the Ethics Law. Dr. Maggs' proposed acceptance
of invitations to attend Christmas parties hosted by a local
engineering firm and a business which now has, or in the past has
had, development applications pending before the Board would
constitute a gift to that individual which must be reported on the
Statement of Financial Interests if the gift or gifts in the
aggregate meet the threshold value of $200 or more. The mere
receipt of said gift would not in and of itself create a conflict
as to any action by Dr. Maggs pertaining to the donors before his
governmental body. This Advice is conditioned upon the assumption
that there would be no "understandings" which would transgress
Sections 3(b) and /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
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.
Sincerely,
Vincent J. Dopko
Chief Counsel