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HomeMy WebLinkAbout95-604 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 11, 1995 95 -604 Re: Conflict, Public Official, Supervisor, Immediate Family, Father -in -law, Subdivision Project. This responds to your letter of September 6, 1995, in which you requested confidential advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a second class township supervisor from participating as to a subdivision and land development project submitted to the township Board of Supervisors when his father -in- law is project manager. Facts: As the Solicitor of A Township in B County, Pennsylvania, and on behalf of C, the individual whose conduct is in question, you are submitting the following issue to the Commission for guidance. The matter does not involve any past conduct by this Supervisor, or any other Supervisor serving on the Board of Supervisors but only the future conduct of C. C is a Supervisor on a three member Board of Supervisors in a second class Pennsylvania Township since January of 1994. C is employed full time as a Project Manager for a local Contracting and Construction Firm. Confidential Advice 95 -604 October 11, 1995 Page 2 During the late 1980's and early 1990's a number of subdivision and land development plans were submitted to the Township by a principal developer, D. Extensive litigation ensued from those proposed land development plans with one case proceeding to the Pennsylvania Supreme Court. That case concluded with a result favorable to the Township and unfavorable to D. Two other cases in which D a principal remain pending in the B County Common Pleas Court. These three cases all involve real property located in A Township. D who is prone to litigation is in the process of submitting a new subdivision and land development plan touching upon most if not all of the land referenced in the various litigation. C is happily married with a good, healthy, amicable, and on going relationship with his father -in -law, E. They do not live together. E is employed in the building and construction industry. E had been hired by D to serve as Project Manager on the new proposed subdivision and land development project. E's role and function as Project Manager has not been clearly delineated, but is expected to be one involving an overall general supervision of the project including serving as an advocate /liaison to the Township Board of Supervisors. At no time has C or E ever been employed by each other or by the same or affiliated employer. You ask whether C should disqualify himself from any and all deliberations involving the subdivision and and development project for which his father -in -law has been appointed Project Manager. Discussion: As a supervisor for A Township, C 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. Confidential Advice 95 -604 October 11, 1995 Page 3 (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 or 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. "Immediate family." A parent, spouse, child, brother or sister. 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 and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official Confidential Advice 95 -604 October 11, 1995 Page 4 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 or will be any transgression thereof but merely to provide a complete response to the question presented. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since father -in -law is not a familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit C from participating or voting as to a subdivision /land development project as to which his father -in- law is project manager. Baker, Opinion 89 -016. Lastly, 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. Conclusion: As Supervisor of A Township, C is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict C from participating or voting as to a subdivision /land development project for which the project manager is his father -in -law who is not a member of his immediate family as that term is defined 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 Confidential Advice 95 -604 October 11, 1995 Page 5 Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. Vincent J. Dopko Chief Counsel