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HomeMy WebLinkAbout94-600 OckerDear Ms. Ocker: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 7, 1994 Jacqueline K. Ocker, Secretary Paradise Township Paradise Township Municipal Building RD 1, Box 490A Cresco, PA 18326 94 -600 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office, Confidential Information, Vote, Business with which Associated; Parent and Subsidiary Corporation, Customers of Employer. This responds to your letter of August 5, 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 official action involving or affecting a corporation or its parent company, where the township supervisor's employer sells and rents large construction equipment to the parent company and its subsidiaries, from which transactions the township supervisor receives commissions. Facts: As Secretary for Paradise Township in Monroe County, Pennsylvania, you request an advisory on behalf of Charles E. DePue, Jr., a Supervisor of Paradise Township. Mr. DePue is employed as a salesman by Medico Industries, a large construction equipment dealership. Mr. DePue has done business, both past and present, with Haines and Kibblehouse, Inc., and its subsidiary companies by selling and renting construction equipment to them. Mr. DePue profits from these sales by commissions he receives from his employer. There is an application to expand an existing stone quarry in Paradise Township from thirteen acres to in excess of one hundred seventy acres. You have submitted contradictory facts as to the identity of the applicant. You initially stated that the applicant is Paradise Materials, Inc., a subsidiary of Haines and Ocker, Jacqueline R., 94 -600 September 7, 1994 Page 2 Ribblehouse, Inc. You subsequently indicated that the applicant is Haines and Ribblehouse, Inc., itself. Additionally, Paradise Township is currently reviewing its code of ordinances, particularly its mining ordinance, under the curative amendment process outlined in the Pennsylvania Municipalities Planning Code. A new mining ordinance is being prepared as to which Mr. DePue would be voting as a Supervisor. The proposed mining ordinance would seek to regulate or limit some aspects of Haines and Ribblehouse's quarrying operations. Based upon all of the above, you request an advisory as to whether it would be a conflict of interest for Mr. DePue to vote on the approval or disapproval of the application to expand the existing stone quarry operation, and further whether it would be ethical for Mr. DePue to vote on any ordinance which may attempt to limit or strictly regulate the way Haines and Ribblehouse's quarrying business is conducted. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(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 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 a Township Supervisor for Paradise Township in Monroe County, Pennsylvania, Mr. Charles E. DePue, Jr. 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: Ocker, Jacqueline K., 94 -600 September 7, r994 Page 3 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. 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 Ocker, Jacqueline K., 94 -600 September 7, 1994 Page 4 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 cif 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, Miakar, 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 /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 Ocker, Jacqueline K., 94 -600 September 7, 1994 Page 5 with which he or a member of his immediate family is associated. Medico Industries, as Mr. DePue's employer, is a business with which Mr. DePue is associated. Based upon prior precedents of the State Ethics Commission, it is clear that Mr. DePue would have a conflict of interest in matters pertaining to his employer's customers, including Haines and Kibblehouse, Inc. ( "Haines and Kibblehouse ") and those of its subsidiaries which do business with Medico Industries. See Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Turning to your specific inquiries, it must be noted that the facts which you have submitted are contradictory and incomplete. First, you have submitted contradictory facts as to the identity of the applicant which seeks to expand the existing stone quarry in Paradise Township. You initially identified the applicant as Paradise Materials, Inc., but you subsequently inquired as to whether Mr. DePue could vote on the approval or disapproval of the application of Haines and Kibblehouse to expand the existing stone quarry operation. Second, you have submitted incomplete facts because you do not indicate whether Paradise Materials, Inc. itself does business with Mr. DePue's employer. This is a material fact because parent and subsidiary corporations are separate corporate entities: mere status as a subsidiary corporation of Hanes and Kibblehouse would not place Paradise Materials, Inc. into a customer relationship with Mr. DePue's employer so as to give rise to a conflict of interest. See, Confidential Opinion, 92 -003; Lowery, Advice 93- 559. Given that the facts which you have submitted are inconsistent and incomplete, this advice may only provide the following limited guidance to you. Mr. DePue would have a conflict of interest in matters involving Haines and Kibblehouse and /or any of its subsidiaries which do business with Medico Industries. If Paradise Materials, Inc. is a customer of Medico Industries, Mr. DePue would have a conflict of interest as to that corporate entity. Mr. DePue would have a conflict of interest as to the application to expand the existing stone quarry if the applicant is a customer of Medico Industries, or if a customer of Medico Industries is otherwise directly involved. Finally, based upon your factual representation that the proposed mining ordinance would seek to regulate or limit some aspects of Haines and Kibblehouse's quarrying operations, and given Ocker, Jacqueline K., 94 -600 September 7, 1994 Page 6 that Haines and Kibblehouse is a customer of Medico Industries, Mr. DePue would have a conflict of interest as to matters which would affect those quarrying operations, including but not limited to such ordinances and /or amendments. 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 Paradise Township in Monroe County, Pennsylvania, Mr. Charles E. DePue, Jr. is a public official subject to the provisions of the Ethics Law. Mr. DePue's employer, Medico Industries, is a business with which Mr. DePue is associated. Mr. DePue would have a conflict of interest in matters before the Township pertaining to customers of Medico Industries, including Haines and Kibblehouse, Inc. ( "Haines and Kibblehouse "), and those of its subsidiaries which do business with Medico Industries. Mr. DePue would have a conflict of interest as to the application to expand an existing stone quarry in Paradise Township if that application has been made by a customer of Medico Industries, or if a customer of Medico Industries is otherwise directly involved. Mr. Depue would have a conflict of interest as to matters, including but not limited to ordinances and amendments, which would involve or affect Haines and Kibblehouse's quarrying operation. 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 Coker, Jacqueline 1C., 94 -600 September. 7, 1994 Page 7 be received at the Cammissio* by hand delivery, United States mail, delivery service, or by FAX traua Lssion (7LT- -787 -0806) . Failure to file such. an appeal at the Commission within fifteen (Z5) days nay result is the dismissal of the appeal. Vincent \TI. Dopko Chief Counsel