HomeMy WebLinkAbout95-605 DAlessandroSamuel M. D'Alessandro
Box 302
Swiftwater, PA 18370
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 11, 1995
95 -605
Re: Conflict, Public Official /Employee, Supervisor, Engineer,
Consulting Engineer, County Planning Commission
Dear Mr. D'Alessandro:
This responds to your letter of September 6, 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 township supervisor
from participating or voting on plans which have been submitted to
the County Planning Commission for which his engineering firm has
reviewed the plans as a consulting engineer.
Facts: You are a Township Supervisor and also a partner in an
engineering firm which acts as a consulting engineer for the County
Planning Commission. Your firm reviews plan submissions forwarded
to the County Planning Commission for advisory review under the
requirements of the MPC.
Your firm conducts these plan reviews pursuant to a January
10, 1994 memorandum from the Planning Commission which outlines
seven areas for the consulting engineer to cover in his review of
plans as per an enclosure which is incorporated herein by
reference. In this capacity, your firm reviews plans for projects
October 11, 1995
Page 2
located in the Township in which you are a Supervisor. Your firm
reviews the plans on behalf of the Planning Commission, but has no
part in the production of these plans. Your firm does not work on
the project for the owner, the developer, or the consulting
engineer who prepared the plans.
When these plans come before the Board of Supervisors, you ask
whether you may vote concerning these plans, that is, either to
approve, reject or approve with conditions. You inquire as to
whether your voting on these plans constitutes a conflict of
interest under the Ethics Law. You assert that there is no
conflict of interest since your firm reviews the plans on behalf of
the County Planning Commission, an advisory body, and not for the
developer or property owner. When you vote as a Township
Supervisor, you state that you are voting on behalf of the Township
and not for the developer or property owner.
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 Township Supervisor 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.
October 11, 1995
Page 3
The following terms are defined in the Ethics Law as. follows:
Section 2. Definit'ons.
"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.
"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.
October 11, 1995
Page 4
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
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.
October 11, 1995
Page 5
In applying the provision of Section 3 (a) of Act 9 of 1989 to
the instant matter, a conflict would exist as to your review of
plans before the township board as to which your engineering
provided consulting services to the county planning commission.
The fact that the engineering firm, the business which you are
associated, provides the consulting services to another
governmental body, as opposed to a developer or private client
makes no difference. Ledeber, Opinion 95 -007.
In this case, your engineering firm has performed consulting
engineering services as to plans. When these plans, for which your
firm received a certain fee for performing its review, come before
the township board, you would be reviewing plans as a public
official wherein your engineering firm in a private capacity
performed engineering services for profit. Such participation on
your part as a public official would be a conflict of interest
under the Ethics Law. Consequently, you could not participate and
must observe the written and oral discloser requirements of Section
3(j) of the Ethics Law quoted 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
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 Township Supervisor, Samuel D'Alessandro is a
public official subject to the provisions of the Ethics Law. Under
Section 3(a) of the Ethics Law, D'Alessandro would have a conflict
as to participating or voting on plans before the township board of
supervisors where his engineering firm provided consulting services
on the plans to the county planning commission. 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.
October 11, 1995
Page 6
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 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