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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