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HomeMy WebLinkAbout94-517 HinmanDavid F. Hinman P.O. Box 211 Galeton, PA 16922 Re: Conflict, Public Official /Employee, Sewage Enforcement Officer, Use of Authority of Office or Confidential Information, Business with which Associated, Septic Tank Pumping and Service, Inspecting /Issuing Permits on Systems of Private Clients. Dear Mr. Hinman: 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 25, 1994 94 -517 This responds to your letter of January 21, 1994 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 Sewage Enforcement Officer who, in his business, does work for home septic systems and then must review that work in his public capacity. Facts: You are a Sewage Enforcement Officer working in various townships in Potter County. You are considering purchasing a small septic tank pumping business. You seek clarification in specific cases wherein a conflict may exist. You believe that simply pumping a septic tank for a home within your townships would not pose a conflict, however, you believe there may be a conflict under other circumstances. You cite two examples. The first example is where home owners request your services on malfunctioning systems which would require repair permits which you, as Sewage Enforcement Officer, then would have to issue and review. The second example is where you, in your private business, would pump large holding tanks for which permits are required and you would have to issue those permits in your capacity as Sewage Enforcement Officer. You believe that in the cases of possible conflict you could refuse to do the work or do the work and have the alternate Sewage Enforcement Officer make inspections and issue permits. Hinman, David F., 94 -517 February 25, 1994 Page 2 Based upon the 'above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Sewage Enforcement Officer for various townships in Potter County, 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. "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. Hinman, David F., 94-517 February 25, 1994 Page 3 "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. 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 Hinman, David F., 94 -517 February 25, 1994 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. Turning to your specific inquiry, it is initially noted that the Ethics Law would not restrict you as ..a Sewage Enforcement Officer from also doing work for private home owners, unless that work was adverse to or inherently incompatible with the duties and responsibilities of the Sewage Enforcement Officer. Conflicting or adverse interests exist where a public official represents two competing interests simultaneously. _ In the instant matter, adverse interests could exist 'if you were to perform any work for private clients which would then come before you for permit, inspection or review in your capacity as a Sewage Enforcement Officer. See Miller, Opinion 89 -024. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever, in including, but not limited to participating in discussions, lobbying for a particular result or any other use of the authority of office. In each instance of a conflict of interest, you would be further required to observe the disclosure requirements of Section 3(j) as set forth above. Finally, it is beyond the scope of this advisory to instruct you as to which of the options you should choose of the two you presented. The key point is that you must avoid the instances of conflict as discussed 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 Hinman, David F., 94 -517 February 25, 1994 Page 5 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 Township Code. Conclusion: As a Sewage Enforcement Officer for various townships in Potter County, you are a public official subject to the provisions of the Ethics Law. In your capacity as a Sewage Enforcement Officer, you would have a conflict of interest as to any matter before you relating to any work you performed for private clients. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature and observe 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 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). ncerely, Vincent T. Dopko Chief Counsel