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HomeMy WebLinkAbout96-522 RichardsonGeorge Richardson Vice Chairperson Bloomfield Township Sewage Authority 22978 Shreve Ridge Road Union City, PA 16438 Dear Mr. Richardson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 4, 1996 Re: Conflict, Public Official /Employee, Township Sewage Authority, Township Supervisor. This responds to your letter of February 1, 1996 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 who is also a boardmember of the township sewage authority. Facts: You are currently a boardmember of the Bloomfield Township Sewage Authority (Authority) and have recently been elected as a Bloomfield Township Supervisor. You inquire as to whether you would be restricted under the Ethics Law from voting on any or all issues, including expansion projects. 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 a Supervisor for Bloomfield Township, 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: r 96 -522 Richardson, 96 -522 March 4, 1996 Page 2 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. "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. 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 Richardson, 96 -522 March 4, 1996 Page 3 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 applying the provisions of Section 3(a) of the Ethics Law to the questions you pose, the response will be generalized since you pose a very general question. As to the matter of voting on issues of the Authority, the areas where you would have a conflict would concern matters where your use of authority of office would result in a private pecuniary benefit to you, a member of your immediate family or business with which you or a member of your immediate family is associated. For example, matters concerning the salary of Authority members, expenses, or benefits could be areas of conflict. As to the matter of sewer expansion projects, you would not have a conflict per se. However, if there was a sewage issue that concerned only your home or that of an immediate family member or business with which associated, you would in those instances have a conflict. Contrariwise, if you live in a development with the houses affected to the same degree by connection to the sewer system, you would not have conflict since the matter would affect a subclass consisting of the group of homeowners in the development. In that case, it is factually assumed that the members of that subclass would not be treated differently as to the sewage issue. See, Laser, Opinion 93 -002. Compare, Mihalik, Opinion 90 -002 where the Commission held that a township supervisor would have conflict in voting on a comprehensive sewage plan under facts which established that large tracts of land owned by the supervisor and his brother would be affected differently than the other members of the subclass. 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 Richardson, 96 -522 March 4, 1996 Page 4 involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Supervisor for Bloomfield Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, you would have a conflict in matters where your use of authority of office would result in a private pecuniary benefit to you, a member of your immediate family or a business with which you or a member of your immediate family is associated. You would not have a conflict per se by voting on issues of expansion projects provided such matters do not involve you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In addition, you may vote on sewage matters which affect a class /subclass provided each member of the class is affected to the same degree. When applicable, 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 such. 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. cerely, ■-lJtArN Vincent J. opko Chief Counsel