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HomeMy WebLinkAbout94-596 SvirskoAlex L. Svirsko, Jr., Esquire Gvozdich„ Buchan & Svirsko 107 East Lloyd Street P.O. Box 330 Ebensburg, PA 15931 Dear Mr. Svirsko: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1994 94 -596 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office, Private Employment or Business, Qualification of Township Police Officers on Shooting Range. This responds to your letter of July 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 township supervisor with regard to qualifying the township police officers on the shooting range for a fee. Facts: On behalf of a Township Supervisor, you seek an advice from the State Ethics Commission. The Supervisor was elected to office in 1993. This Supervisor is also one of two people in the County that qualify police officers on the shooting range. This Supervisor has asked you to inquire of the State Ethics Commission as to whether there would be a conflict of interest under the Ethics Law if he qualified the police officers from the Township in which he is a Supervisor. The Supervisor receives a fee for qualifying the individual police officer. That fee is $15.00 per officer unless the Township Supervisor must supply ammunition and supplies in which case the fee is $30.00 per police officer. The Township in which this person is a Supervisor has four police officers who must qualify in a shooting once per year. These police officers do not have to go to the Supervisor to qualify, but they can go to the other person in the County who is certified to qualify these police officers. However, that person Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 2 only qualifies people on Sunday and is approximately 25 to 35 miles away from the Township. You inquire as to the restrictions /prohibitions of the Ethics Law which would apply to the Supervisor under the above facts and circumstances. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 96407(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. 69407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. A Township Supervisor is a public official as that 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 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 Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 3 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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(f) of the Ethics Law provides as follows: Section 3 (f) employee business child is contract . Restricted activities No public official or public or his spouse or child or any in which the person or his spouse or associated shall enter into any valued at $500 or more with the Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 4 governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 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 Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 5 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 facts which you have submitted, it is initially noted that you have not disclosed whether the Township would be paying the fees for its police officers or whether those individuals would be paying their own fees. However, Section 3(f) of the Ethics Law would appear to be inapplicable even if the Township does pay the fees for these four officers, because the total fee would at most be $120.00 and therefore would be below the $500.00 threshold for applicability of Section 3 (f) . In applying Section 3(a) of the Ethics Law to the instant matter, Section 3(a) does not prohibit public officials /employees from business activities outside of their public service; 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 89 -011. Should a public official use the authority of his office or confidential information received through the public position to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he or a ,member of his .immediate family is associated, such would constitute a conflict of interest prohibited by Section 3(a) of the Ethics Law. For example, if the Township Supervisor were to use the authority of his office to direct that the Township police officers use his services for qualification on the shooting range, such would constitute a conflict of interest. Likewise, should the Board of Supervisors consider matters pertaining to the qualifications on the shooting range, this Supervisor would have a conflict of interest. Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 6 A public official /public employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities such as governmental telephones, staff, equipment, or any other property, or governmental personnel. In addition, the public official /employee could not during government working hours, solicit to promote such business activity. Pancoe, supra. In each instance of a conflict of interest, the Township Supervisor would be required to abstain from any participation and to disclose his abstention and the reasons for the same, both orally at the public meeting and in a written memorandum to be filed with the Secretary recording the minutes. In the event that a public official /employee's private employer or business has a matter pending before his governmental body or if he as part of such official duties, must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that he be removed from that process. 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. Furthermore, it is expressly assumed that in certifying individuals on the shooting range, the Township Supervisor is not acting contrary to the provisions of 53 P.S. §S65410, 65514 by holding any other township office or position other than roadmaster, secretary - treasurer, superintendent or laborer. Conclusion: A Township Supervisor is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude a Township Supervisor from outside employment /business activity, such as qualifying Township police officers on the shooting range, subject to the restrictions, conditions and qualifications as noted above. The Township Supervisor may not use the authority of office or any confidential information gained by holding his public position to obtain any business in a private capacity, including but not limited to the business of qualifying Township police officers on the shooting range. This Township Supervisor would have a conflict of interest as to matters before the Supervisors pertaining to the qualifications on the shooting range. In the event that the private business matters of the Township Supervisor would be pending before the Township, then this individual could not Svirsko, Jr., Alex L., Esquire, 94 -596 August 22, 1994 Page 7 participate in such matters and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to 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. 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 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. incerely, Vincent J. Dopko Chief Counsel