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HomeMy WebLinkAbout93-557 StoneDonald M. Stone R.D. #1, Box 8 Thompson, PA 18465 Dear Mr. Stone: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 4, 1993 93 -557 Re: Conflict, Public Official /Employee, Township Supervisor, President of Council of Governments Sewer Committee, Contracting for Sewer Design for Individuals within Township and within Governments Sewer Committee Member Municipalities. This responds to your letter of April 16, 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 and president of council of governments sewer committee from doing sewer design work for individuals in the township or within any municipality that is a member of the council of governments sewer committee. Facts: You are a Supervisor of Ararat Township, a compensated position, and President of the Council of Governments Sewer Committee with eleven municipalities as members in Susquehanna County, an uncompensated position. You specifically ask whether it would be a conflict of interest for you to do sewer design work for individuals in Ararat Township or in any municipality that is a member of the Council of Governments Sewer Committee. Discussion: As a Supervisor for Ararat Township, Susquehanna County, and as President of the Council of Governments Sewer Committee, you are a public official as that term is defined under the Ethics Law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities Donald M. Stone May 4, 1993 Page 2 (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 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. "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 Donald M. Stone May 4, 1993 Page 3 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 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 Donald M. Stone May 4, 1993 Page 4 event participation is permissible provided the disclosure requirements noted above are followed. See, plakar, Advice 91-523 - S. Before applying the provisions of the Ethics Law to the question which you have submitted, it is initially noted that this Advice expressly assumes that the Council of Governments Sewer Committee is a properly formed authority under the Municipality Authorities Act and therefore is a separate governmental body. In applying the above provisions of the Ethics Law to the facts which you have presented, Section 3(a) of the Ethics Law prohibits a public official 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 himself or a business with which he is associated. Designing sewers for clients is a business with which you are associated. In the event any client would have a matter regarding the sewer design before you as a public official, a conflict would exist. Miller, Opinion 89 -024. As noted in Miller, matters which come before a public official /public employee involving his private business or private clients place a public official /employee in a situation where he is faced with conflicting interests. In his private capacity, a duty is owed the private clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the governmental body with the duty being owed to the public rather than to private clients. A conflict would exist even if your clients had other matters not related to the sewer design before your governmental body. §ea, Kannebecker, Opinion 92 -010. The conflict which exists would apply whether the individuals were residents of Ararat Township or of the other municipalities which are members of the Council of Governments Sewer Committee. In each instance of a conflict of interest, you must divest yourself from any participation and must fully 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 Second Class Township Code or Municipality Authorities Act. Conclusion: As Supervisor for Ararat Township and as President of the Council of Governments Sewer Committee, you are a public official subject to the provisions of the Ethics Law. As one who Donald M. Stone May 4, 1993 Page 5 does sewer designs for .individuals, you are not precluded doing such work for individuals within Ararat Township or any other municipality which is a member of the Council of Governments Sewer Committee. However, you would have a conflict of interest as to any matters before you as a public official involving any sewer designs or other matters as to your clients in Ararat Township and/ or in any other municipality which is a member of the Council of Governments Sewer Committee. In each instance of a conflict of interest, you would be required to abstain from any participation in discussion, lobbying for a particular result and /or voting or any other use of the authority of office on any matter regarding your clients. In each instance of a conflict of interest, 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. 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 §13.2(h). Vincent' J . Dopko Chief Counsel