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HomeMy WebLinkAbout93-623 WesterveltDear Mr. Westervelt: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 24, 1993 George W. Westervelt, Jr., Esquire 93 304 Park Avenue P.O. Box 549 Stroudsburg, PA 18360 Re: Conflict, Public Official /Employee, Township Auditor, Use of Authority of Office or Confidential Information, Private Employment, Attorney, Representation of Township Residents, Lawsuit Against Township. This responds to your letter of November 15, 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 auditor who is also a private attorney representing a group of township residents in a lawsuit against the township. Facts: On November 2, 1993, you were elected Auditor of Paradise Township, Monroe County. For approximately the past two years, you and your associates have represented a group of property owners in an injunction action against Paradise Township. You state that the Court of Common Pleas granted the injunction; however, the Commonwealth Court reversed. Currently, a Petition for Reargument is pending before the Commonwealth Court. Further, you state that if the property owners lose in Commonwealth Court, a Petition for Allowance of Appeal will be filed with the Pennsylvania Supreme Court. Based upon the above, you request an advisory from this Commission as to whether you may hold the office of Township Auditor and also represent the property owners against the Township. In addition, you question whether you may hold the office of Auditor if your associates continue the lawsuit with you taking no part or responsibility in the litigation. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories are issued to the requestor based upon the facts which the George W. Westervelt, Jr., Esquire November 24, 1993 Page 2 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 does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Auditor for Paradise Township, Monroe County, you will become a public official as that term is defined under the Ethics Law, and hence you will be 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 particular public office or position of public employment. George W. Westervelt, Jr., Esquire November 24, 1993 Page 3 "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 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 George W. Westervelt, Jr., Esquire November 24, 1993 Page 4 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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 is prohibited from using the authority of public office or confidential information received by holding such public office for the private pecuniary benefit of the public official, any member of his immediate family, or a business with which the public official or a member of his immediate family is associated. In this case, it is clear that your practice as an attorney is a business with which you are associated as defined in the Ethics Law and as encompassed within Section 3(a) set forth above. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion No. 89 -011. A public official/ employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion No. 89 -013. In applying the above principles to the facts which you have submitted, the current litigation would not preclude you from serving as Auditor. It is clear, however, that as a public official, you would have a conflict of interest in matters pertaining to the litigation. That is, as Auditor, if you must pass upon the litigation issue, or any other issue, whereby you, a George W. Westervelt, Jr., Esquire November 24, 1993 Page 5 member of your immediate family, or a business with which you or a member of your immediate family are associated would receive a private pecuniary benefit, you would have a conflict of interest. In each instance of a conflict of interest, you would be required to fully abstain from participation in the capacity as a public official, satisfying the disclosure requirements of Section 3(j) as set forth above by publicly announcing the nature of the conflict as well as filing a written memorandum regarding same with the person recording the minutes. In this regard it is noted that the term "use of authority of office" encompasses more than the mere voting on an issue before you, and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. As for your specific inquiry, the Ethics Law would not preclude you from representing the Township residents in litigation against the Township, while you are serving as Township Auditor, conditioned upon your fully abstaining from acting upon matters involving the litigation directly or indirectly in your capacity as Auditor and conditioned upon your satisfaction of 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 New Rules of Professional Conduct. Conclusion: As a candidate elected to the position of Auditor for Paradise Township, Monroe County, you will become a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from serving as Township Auditor and as a private attorney representing litigants against the Township subject to the restrictions and qualifications noted above. In the event that any matter in which you have a conflict, including the litigation matter, is before you as Auditor, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law outlined above must be satisfied. 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. George W. Westervelt, Jr., squire November 24, 1993 Page 6 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 513.2(h). . ncerely, incent `J Dopko Chief Counsel