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HomeMy WebLinkAbout93-542 FleckRobert R. Fleck, Esquire 198 North Pine Street Langhorne, PA 19047 Re: Conflict, Public Official /Employee, Township Supervisor, Letter Seeking Re- election, Members of Subsidiary Boards. Dear Mr. Fleck: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 6, 1993 93 -542 This responds to your letter of March 8, 1993, 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 sending a letter seeking support for his re- election to members of subsidiary boards, some of whom are compensated, where the supervisor would use his own stationery services and time to send the letter. Facts: As Solicitor for Lower Southampton Township, you request an advisory on behalf of a Lower Southampton Township Supervisor, Dan Fraley, who is running for re- election this year. Mr. Fraley is contemplating sending a letter, a copy of which has been submitted and is incorporated herein by reference, to members of all subsidiary boards of Lower Southampton Township. Members of two of the boards, the Zoning Hearing Board and the Municipal Services Advisory Board, are paid. Mr. Fraley would use his own stationery services and time to send the letter. It is noted that the submitted letter presents Mr. Fraley's view of his past service and his role on certain issues, and closes by asking the recipient for consideration and support as to Mr. Fraley's re- election. Based upon the above, you request an advisory from the State Ethics Commission on behalf of Mr. Fraley. Discussion: As a Township Supervisor for Lower Southampton Township, Pennsylvania, Mr. Dan Fraley is a public official as that Robert R. Fleck, Esquire April 6, 1993 Page 2 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 impactor 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. 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. Robert R. Fleck, Esquire April 6, 1993 Page 3 In applying the above provisions of the Ethics Law to the facts which you have submitted, given that Mr. Fraley would be sending the submitted letter using his own stationery services and time, a strict reading of the submitted facts would indicate that the only provisions of the Ethics Law which could be implicated would be Sections 3(b) and /or 3(c),'and then only if there were a prohibited "understanding" such as where the votes, support or assistance of the recipients of the letter would be solicited in exchange for re- appointment to compensated service on the respective boards. Absent such an understanding, Sections 3(b) and 3(c) would not be implicated as to the-proposed conduct. However, you are cautioned that advisories are issued based upon the facts which are submitted, and any defense afforded by the advisory process pursuant to Sections 7(10) and (11) of the Ethics Law, 65 P.S. S5407(10), (11), is conditioned upon the truthful submission of all material facts by the requestor. Thus, Section 3(a) of the Ethics Law involving conflicts of interest would be implicated in a situation where the actual facts established that in order to remain on a board, a recipient of the letter was compelled to vote for Mr. Fraley. See, e.a. , Tialio Order No. 866, and Pugh, Order No. 867, wherein the Commission found a violation of Section 3(a) of Act 170 of 1978 . where the testimony of Pittsburgh City Controller employees established that they were solicited for political contributions to Tom Flaherty's campaign under circumstances which caused them to believe- that their employment was conditioned upon making such contributions. 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 or the Election Code. Conclusion: As a Township Supervisor for Lower Southampton Township, Pennsylvania, Mr. Dan Fraley is a public official subject to the provisions of the Ethics Law. Under the facts which have been submitted, absent any "understandings" which would transgress Sections 3(b) and /or 3(c) of the Ethics Law, and subject to the restrictions, conditions, and qualifications noted above, the Ethics Law would not prohibit Mr. Fraley from sending the letter which has been submitted for Commission review to members of all subsidiary boards of Lower Southampton Township where he would use his own stationery services and time to send the letter. 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 Robert R. Fleck, Esquire April 6, 1993 Page 4 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. cerely, Vincent . Dopko Chief Counsel