HomeMy WebLinkAbout93-547 OchsSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 14, 1993
93 -547
Janet M. Ochs
R.R. #1, Box 566
Lucinda, PA 16235
Re: Conflict, Public Official /Employee, Township Supervisor, Grant
to Scouts, Recycling Center, Real Estate Interest of Public
Official or Immediate Family Member.
Dear Ms. Ochs:
This responds to your letter of March 22, 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 the prospective purchase by the township of an acre
of real estate to be used for a recycling center, where the
property borders timber land and coal stripped property owned by a
business with which the supervisor's spouse is associated.
Facts: As one of three Farmington Township Supervisors, you seek
an advisory from the State Ethics Commission.
The North Clarion Cluster of Scouts, in conjunction with
Farmington Township, applied for and was recently awarded grant
money from the Department of Environmental Resources (DER) for the
purpose of building and operating a drop -off recycling center.
Initially, your husband, Theodore Ochs and his brother Regis Ochs,
through a partnership, Regis Ochs Lumber Company, offered to lease
- at a nominal amount or donate one acre of ground to the Scouts for
locating this recycling center. However, the Township was later
advised by a representative of DER that Farmington Township itself
must own the piece of property upon which the center will be
located, as the tangible property resulting from this grant will
revert to the Township if for some reason the scouting organization
is unable to continue operation of the drop -off center.
Your husband and his brother do not wish to sell to the
Township the one acre of ground offered to the scouts. Another one
Janet M. Ochs
April 14, 1993
Page 2
acre piece of property, owned by Township resident George Steele,
has been located, is for sale and can be purchased by the Township.
However, this property borders a piece of timber land and coal
stripped property that is owned by the partnership, Regis Ochs
Lumber Company. You state that you have no ownership interest in
Regis Ochs Lumber Company.
You state that you supported the application for the grant
monies on behalf of the scouting organization and continue to
support the entire concept of their recycling project. You have
abstained from any discussion concerning the land leasing
proposition involving your husband and his brother. You state that
you need to know if you are faced with a potential conflict with
the proposed purchase of land bordering property owned by your
husband and his brother.
You state that you do not think that there would any impact as
the result of . the recycling center based on the plan of operation
proposed by the scouting organization. You further state that you
cannot, under the present circumstances, see where there could be
any financial interest on the part of your husband and his brother.
However, you state that you incorrectly made that assumption in
another instance and were advised by this Commission of your
conflict through Advice No. 92 -647 and Advice No. 92- 647 -S. You
state that you do not wish to be in that position again.
You have been informed by the Township Secretary that at the
regular meeting of the Farmington Township Board of Supervisors to
be held on April 8, 1993, the Board will be considering the
purchase of the acre of ground. You ask whether you must abstain
from voting on the purchase of the land belonging to George Steele,
or any land which might border property in which your husband has
an interest.
Discussion: As a Township Supervisor for Farmington Township,
Pennsylvania, 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.
Janet M. Ochs
April 14, 1993
Page 3
"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.
"Immediate family." A parent, spouse,
child, brother or sister.
"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.
"Financial interest." Any financial
interest in a legal entity engaged in business
for profit which comprises more than 5% of the
equity of the business or more than 5% of the
assets of the economic • interest in
indebtedness.
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
Janet M. Ochs
April 14, 1993
Page 4
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 axists, 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. See, Mlakar, Advice 91-523 -
S.
Janet M. Ochs
April 14, 1993
Page 5
Before applying the above provisions of the Ethics Law to your
inquiry, it is initially noted that pursuant to Sections 7(10) and
(11) of the Ethics Law, 65 P.S. § 5407(10), (11), advisories are
issued to the requestor based upon the facts which the requestor
has submitted. In issuing the advisory based upon the facts which
the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor may it speculate as to
facts which have not been •submitted. It is the burden of the
requestor to provide all of the material facts needed to answer the
inquiry. 65 P.S. S407(10), (11); See also, Confidential Opinion
90 -012 ( Requestor bears the burden of supplying factual
circumstances in appeal of Advice).
In applying the above provisions of the Ethics Law to the
limited facts 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.
In this case, the statutory elements for a conflict of
interest are present. As a Farmington Township Supervisor, you are
a public official who would use the authority of office to pass
upon matters involving the purchase of the land for the proposed
recycling center. A business with which your husband is
associated, Regis Ochs Lumber Company, owns timber land and coal
stripped property bordering the very land owned by Mr. Steele which
the Township is considering purchasing for the recycling center.
Under such circumstances, the use of the authority of your office
may very well result in a private pecuniary benefit to the said
business with which your husband is associated, to the extent the
proposed recycling center could impact upon the value and /or use of
the land.
However, this only answers the threshold question. A second
question would be whether, under the facts which you have
submitted, the exclusionary language of the definition of
"conflict" or "conflict of interest" would apply.
In this case, the facts which have been submitted simply fail
to meet the burden which you, as the requestor, bear to demonstrate
applicability of the exclusionary language. Therefore, based upon
the facts which you have submitted, the necessary conclusion is
that you would have a conflict of interest as to matters involving
the proposed purchase of Mr. Steele's land for the recycling
center, and that the facts which you have submitted fail to meet
your burden of establishing that you would fit within the
exclusionary language found within the definition of "conflict" or
Janet M. Ochs
April 14, 1993
Page 6
"conflict of interest."
However, given that the Board of Supervisors is a three- member
Board, should the Board become deadlocked on the matter of the
purchase of Mr. Steele's land for the recycling center after you
have fully abstained and complied with the disclosure requirements
of Section 3(j), then Section 3(j) of the Ethics Law would allow
you to vote.
Finally, as to your general question as to whether you would
have a conflict of interest as to the Township's purchase of other
lands bordering property in which your husband has an interest,
such would depend upon the facts and circumstances surrounding such
a purchase. Without the necessary facts and circumstances, this
general question may not be addressed.
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 Farmington Township,
Pennsylvania, you are a public official subject to the provisions
of the Ethics Law. Based upon the facts which you have submitted,
you would have a conflict of interest in matters pertaining to the
proposed purchase of an acre of land for a recycling center which
acre borders timber land and coal stripped property owned by a
business with which your husband is associated. In each instance
of a conflict of interest, you would be required to abstain from
any participation and to fully satisfy the disclosure requirements
of Section 3(j) as set forth above. Given that the Board is a
three - member Board, in the event that a deadlock would occur due to
your abstention, Section 3(j) of the Ethics Law would then allow
you to vote provided you had previously fully abstained and
satisfied 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
Janet M. Ochs
April 14, 1993
Page 7
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,
(,--rAnAn 00,g
Vincent Dopko
Chief Counsel