HomeMy WebLinkAbout95-608 ConfidentialDear:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 18, 1995
95 -608
Re: Conflict, Public Official /Employee, Second Class Township,
Supervisor, Engineering firm, Business with which associated,
Subdivision /land development plans.
This responds to your letter of September 12, 1995 in which
you requested confidential 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 a subdivision land development plan
submitted by an engineering firm when another engineering firm,
with which the supervisor is associated, may have performed some
previous work on the plan.
Facts: As the Solicitor of A Township in B County, Pennsylvania,
you seek advice regarding C who is a Supervisor on a second class
township three member Board of Supervisors. C is a Supervisor
since January of 1995 and is employed full time as an Engineer for
a local Engineering firm, F.
During the late 1980's and early 1990's a number of
subdivision and land development plans were submitted to the
October 18, 1995
Page 2
Township by a principal developer, D. Extensive litigation ensued
from these 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 was a principal remain pending in the B County
Common Pleas Court. These three cases all involve real property
located in A Township.
As to the case that proceeded to the Supreme Court,
engineering work was performed for D by F, the same firm with which
C is now employed and by whom he was employed at the time D
retained the firm. However, C performed no work on the project for
D while employed by F; such work was performed by others. At the
time that the work was performed for D by F, C was not a Supervisor
with the Township.
D is indebted to F for services performed on the project that
eventually proceeded to the Pennsylvania Supreme Court. Although
the exact amount outstanding is unknown, a dispute exists involving
the debt.
D is in the process of submitting a new subdivision and land
development plan which includes most if not all of the land
referenced in the various litigation. D has retained a new
engineering concern to perform the necessary work for his revised
subdivision and land development plan. It is unknown whether the
new engineering firm will use or otherwise rely upon the work
product of F. It is also unknown whether the new engineering firm
will submit a plan fundamentally different, similar, or the same as
the F plan.
The question arises as to whether C should recuse himself from
any and all deliberations involving D's revised subdivision and
land development project for which his employer is owed money from
the developer and for which proprietary issues involving work
product may arise between F and the new engineering firm.
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.
October 18, 1995
Page 3
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.
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
October 18, 1995
Page 4
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
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
October 18, 1995
Page 5
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 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 response to the specific questions you pose, Section 3(a)
of the Ethics Law would prohibit C from participating or voting on
matters involving a business with which he is associated. If it is
true factually that the subdivision land development plan that is
submitted consists of the work product of F, C would have a
conflict even if he did not do any of the engineering work in the
plan. See Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. If
it is true factually that the subdivision /land development plan
that is submitted is the plan and work product of another
October 18, 1995
Page 6
engineering firm with which C is not associated, C would not have
a conflict.
The fact that F may be owed money or may be in a dispute with
another engineering firm is not controlling. The key factual issue
is whether the plan submission is the work product of the business
with which C is associated. As noted above, the Commission does
not investigate or make fact findings as to advisory requests.
Laser, Opinion 93 -002. This advisory is specifically limited to the
question posed.
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 Supervisor for A Township, C a public official
subject to the provisions of the Ethics Law. Under Section 3(a) of
the ethics Law, C would have a conflict as to participating or
voting in a subdivision /land development plan if the plan contains
the work product of the engineering firm with which he is
associated. When a conflict exists, 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.
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
October 18, 1995
Page 7
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
act ally 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.
ry truly yours,
Vincent J. Dopko
Chief Counsel