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HomeMy WebLinkAbout93-516 WhelanJohn J. Whelan, Esquire Doyle, Whelan & Doyle First Pennsylvania Building 20 Garrett Road, Suite 210 Upper Darby, PA 19082 Dear Mr. Whelan: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 23, 1993 93 -516 Re: Conflict, Public Official /Employee, Borough Council Member, Employee, Director, Municipal Authority, Borough's Delegation of Sewage Fee Collection to Authority. This responds to your letter of December 21, 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 who also serves on the board of directors or as an employee of a municipal sewage /water authority to which the borough will be turning over a sewage pump station, with regard to a motion to have the authority also collect the sewer fees. Facts: As Solicitor for the Borough of Eddystone, you seek an advisory from the State Ethics Commission on behalf of Mr. Robert J. Howat, Council President and an employee of the Delaware County Regional Water Quality Control Authority ( "DELCORA "), and on behalf of Mr. Joseph Getz, a Borough Council Member and a Member of the Board of Directors for DELCORA. DELCORA is a Pennsylvania Municipal Authority that services the Delaware County area in regard mainly to sewer treatment facilities and other water quality control. You state that it is your understanding that Mr. Howat receives an hourly wage for his services at the DELCORA plant, and that Mr. Getz also receives a salary for his services. The Borough of Eddystone is in the process of completing a sewage pump station which is expected to be turned over to DELCORA in the next few weeks. Recently a motion was made by a Council Member to also have DELCORA collect the sewer fees in lieu of having the municipality do same by way of taxation. An issue was raised as to whether Mr. Getz and Mr. Howat would have a potential John J. Whelan, Esquire February 23, 1993 Page 2 conflict of interest due to their connection with DELCORA, in regard to voting on the motion. You state that out of an abundance of caution, both of these Council Members abstained from said vote. However, they believe that they should be permitted to vote since, among other reasons, their salaries that are received from DELCORA are not dependent upon this type of motion. You further state that although there does not appear to be case law to guide you on the exclusionary language under the definition of "conflict" or "conflict of interest" pertaining to subclasses, you believe that exclusion would be applicable to the instant situation. Based upon all of the above, you request an advisory as to whether these two Council Members may vote on the motion pertaining to DELCORA. Discussion: Mr. Robert J. Howat, as President of Council for the Borough of Eddystone, and Mr. Joseph Getz, a Member of Council for the Borough of Eddystone and a Member of the Board of Directors of DELCORA, are public officials as that term is defined under the Ethics Law, and hence each 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 John J. Whelan, Esquire February 23, 1993 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self- employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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 John J. Whelan, Esquire February 23, 1993 Page 4 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 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. It is noted that as a governmental body, DELCORA would not be within the definition of "business with which associated." Thus, in this case, the potential bases for conflicts of interests would involve private pecuniary benefits to these Council Members themselves or members of their immediate families. Thus, for example, if a motion were to be made before Borough Council to turn over the pump station which would necessitate more hours of work and /or overtime for Mr. Howat, Mr. Howat would have a conflict of interest. The use of the authority of his office would result in a private pecuniary benefit to him. Similarly, if Members of the Board of Directors would receive additional compensation from the appointing authority based upon John J. Whelan, Esquire February 23, 1993 Page 5 some action to be taken, such as taking over the sewage pump station and /or collecting the sewer fees, Mr. Getz would have a conflict of interest. The use of the authority of his office as a Borough Council Member would result in a private pecuniary benefit to him as a Member of the Board of Directors of DELCORA. In each instance of a conflict• of interest, the public official would be required to abstain and to fully satisfy the disclosure requirements of Section 3(j). With regard to your suggestion that the exclusionary language under the definition of "conflict" or "conflict of interest" which applies to qualifying subclasses, would be applicable in this case, the facts which you have submitted simply do not reveal a basis for a subclass exclusion. 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 and /or the Municipality Authorities Act. Conclusion: Robert J. Howat, as President of Borough Council for the Borough of Eddystone, and Joseph Getz, as a Member of the Borough Council for the Borough of Eddystone and a Member of the Board of Directors of the Delaware County Regional Water Quality Control Authority ( "DELCORA "), are public officials subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, matters before Borough Council pertaining to DELCORA, where Mr. Howat is an employee and Mr. Getz is on the Board of Directors, and from which each receives compensation, would pose a conflict of interest where the use of authority of office as a Borough Council Member would result in a private pecuniary benefit to these individuals or members of their immediate families. In each instance of a conflict of interest, the public official would be required to abstain and to fully satisfy the disclosure requirements of Section 3(j). 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 John J. Whelan, Esquire February 23, 1993 Page 6 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