HomeMy WebLinkAbout95-518 DavisSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 17, 1995
Raymond C. Davis, Esquire
Attorney at Law
23 Maple Street
Montrose, PA 18801
Re: Conflict, Public Official /Employee, Municipal Authority, Board
Member, Rate Classification, Mobile Home Park, Business with
which Associated.
Dear Mr.Davis:
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95 -518
This responds to your letter of January 9, 1995 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 municipal authority
board member who holds a mortgage on a mobile home park which he
sold to an unrelated party regarding his participation or voting as
to connection fees for the sewage collection system.
Facts: As the Bridgewater Township Municipal Authority attorney,
you seek an advisory regarding a Board member's deliberation and
voting on the impact and /or connection fees as to a sewer
collection system which has been installed in the area. In
December, 1991, a Board member sold a mobile home park to an
unrelated party for the consideration of $220,000.00 and took back
a mortgage in the amount of $200,000.00. The sewage collection
system will serve the mobile home park along with several single
family residences. Since the Authority has preliminarily
established different classifications for impact and /or connection
fees with $600.00 for a single family residence per EDU and with
$300.00 as to the mobile park per EDU, the Board member did not
participate in the discussions regarding the setting of the
preliminary classification rates. A question has been raised as to
whether the Board member has a conflict because he holds the
mortgage on the mobile home park. You ask whether the Board member
should abstain from discussing the fees and /or voting on this
matter. In addition, you ask whether a conflict of interest exists
due solely to the fact that the Board member holds a mortgage on
the mobile home park. Lastly, since three of the five board
Davis, Raymond C., 95 -518
February 17, 1995
Page 2
members reside in the area affected by the impact and /or connection
fees, you ask whether it is a conflict for them to vote on the
fees.
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 Board member for Bridgewater Township Municipal Authority,
the individual 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
immediate family is associated.
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Davis, Raymond C., 95 -518
February 17, 1995
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
three - member governing body of a political
Davis, Raymond C., 95 -518
February 17, 1995
Page 4
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.
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 -5.
Initially, it is noted that the public official does have a
financial interest in the mobile home park in light of the
mortgage. See the definition of "financial interest" above.
Therefore, the mobile home park is a business with which he is
associated as that term is defined under the Ethics Law. In light
of the above, the public official would have a conflict in voting
on matters involving the mobile home park and must recuse himself
and observe the disclosure requirements of Section 3(j) as noted
above.
In answer to the specific questions you have posed, you are
advised that the public official must abstain from participation as
well as voting on fees in light of the conflict. Juliante, Order
809. As noted above, a conflict does exist because the Board
member holds the mortgage on the mobile home park which creates a
financial interest on his part in the mobile home park which
becomes a business with which he is associated under the Ethics
Law.
As to your last inquiry regarding whether other Board members
may vote in light of the fact that three of the five Board members
reside in the area affected by the impact and /or connection fees,
you are advised that that issue cannot be addressed in that such is
a third party request. In this regard, you were sent a letter
dated January 12, 1995, and advised that for this Commission to
process any request, you must be authorized by the person(s) whose
conduct is in question. Since you have indicated that only the
Board member who has the mortgage on the mobile home park has
authorized you to ask such a request, it is clear that the other
Board members have not and on that basis that issue may not be
Davis, Raymond C., 95 -518
February 17, 1995
Page 5
addressed.
such.
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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 respective municipal code.
Conclusion: As Board member for Bridgewater Township Municipal
Authority, the individual is a public official subject to the
provisions of the Ethics Law. Section 3(a) of the Ethics Law would
prohibit a municipal authority board member from voting on matters
which would affect a mobile home park as to which he holds a
mortgage which creates a financial interest in the mobile home park
which would be a business with which he is associated under the
Ethics Law. The requirements of Section 3(j) of the Ethics Law
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.
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).
Failure to file such an appeal at the Commission within fifteen
(15) days may result in the dismissal of the appeal.
cr
Vincent Dopko
Chief Counsel