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HomeMy WebLinkAbout96-568 GatesSamuel K. Gates, Esquire Gates & Mooney 250 York Street Hanover, PA 17331 Dear Mr. Gates: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 12, 1996 96 -568 Re: Conflict, Public Official /Employee, Township, Supervisor, Construction /Subdivision Business, Sewage Enforcement Officer, Out -of- Township SEO. This responds to your letters of May 15 and May 21, 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 in the construction /subdivision business, with regard to a Sewage Enforcement Officer from another Township who has been appointed to do the inspection work as to that Supervisor. Facts: As the Solicitor for Jackson Township, you request an advisory on behalf of Charles Hartman (Hartman) who is a Jackson Township Supervisor. In his private capacity, Hartman has a construction /subdivision business. In this business, Hartman needs to have on -site sewage systems approved and he also installs sewage systems on other people's land. To avoid the appearance of impropriety, you suggested that the Board appoint a Sewage Enforcement Officer (SEO) from outside Jackson Township to do the inspection work for Hartman. You state that DER (now the Department of Environmental Protection, or DEP) has taken the position that any SEO is in a conflict of interest because of Hartman's position as Supervisor. You have submitted an excerpt of certain material (which excerpt is incorporated herein by reference) setting forth DEP's view. DEP has forwarded this material to the out -of- township SEO that Jackson Township appointed. DEP views a Township Supervisor as functioning as the employer of the Township's SEO. The material references regulations (25 Pa.Code Chapter 72.41(g)(h)) which prohibit an SEO from official involvement where an employer of the SEO has a financial interest. Gates /Hartman, 96 -568 June 12, 1996 Page 2 You inquire as to whether the appointment of an out -of- township SEO would constitute a conflict of interest for Hartman under the Ethics Law. 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. It is further noted that your inquiry is addressed only as to Mr. Hartman, who has given you permission to inquire on his behalf. The SEO's conduct, which appears to be the subject of regulation by DEP, is not addressed herein. As a Supervisor for Jackson Township, Hartman 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. (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. Gates /Hartman, 96 -568 June 12, 1996 Page 3 "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 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. Gates /Hartman, 96 -568 June 12, 1996 Page 4 In applying the above provisions of the Ethics Law to the facts which you have submitted, it must initially be noted that this Commission does not have the statutory jurisdiction to enforce DEP regulations but rather, the consideration of your request for advice must be within the purview of the Ethics Law itself. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee may not use the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. Section 3(a) of the Ethics Law applies to restrict a public official /public employee in his public capacity rather than in his private business dealings. It is clear that the authority of office of a Township Supervisor would ordinarily include official decisions pertaining to the SEO such as his continued employment, compensation, benefits, and the like. On the other hand, the authority of an SEO would include review of sewage system work such as that performed by Mr. Hartman. Thus, if the Township's own SEO would review Mr. Hartman's projects, Mr. Hartman would be seeking a favorable review by the very same SEO over which he exercises official control as a Township Supervisor. The Commission considered a similar situation in Bassi, Opinion 86- 007 -R. In Bassi, a county commissioner sought to enter into a lease with an authority upon which a county employee served as an authority member. The Commission's Opinion stated, inter alia, that the county employee /authority member should abstain from participating in any matter relating to the lease. The Commission further stated that if the county commissioner received the lease, he could not take any future action related to the county employee in matters pertaining to his employment as well as matters submitted to the commission by that county employee. Public disclosure was also required along with abstention. Bassi, supra, at 3 -4. Although Bassi was decided under former Act 170 of 1978, the Commission's reasoning in Bassi would continue to apply under Act 9 of 1989. See, Woodrinq, Opinion 90 -001. Therefore, if the Township's own SEO reviewed Mr. Hartman's projects, Mr. Hartman would have a conflict of interest in any matter before the Board of Township Supervisors involving the SEO as a Township employee (such as his maintenance of employment, compensation, benefits and the like), as well as in any matter presented to the Board by the SEO. The question which you have raised is essentially whether the appointment of an SEO from outside the Township would make any difference for purposes of the Ethics Law. Perhaps conflicts would arise less frequently, but at least some of the same conflicts would arise for Mr. Hartman as to the out -of- township SEO. To the extent the Board would take action as to the out -of- township SEO such as to his appointment, continued service, compensation and the like, Mr. Hartman would have a conflict of interest. Thus, Mr. Hartman would have a conflict of interest as to any matter before the Board of Supervisors relating to a Sewage Enforcement Officer (SEO) — either from within or outside of the Township — if the SEO would have the authority to review Hartman's projects. Gates /Hartman, 96 -568 June 12, 1996 Page 5 It is further noted that should Mr. Hartman and /or any of his private clients have a matter before the Board of Supervisors, such would constitute a conflict of interest for Mr. Hartman as well. See, Miller, Opinion 89 -024. In each instance of a conflict of interest, Mr. Hartman would be required to abstain from any participation of any nature whatsoever, including but not limited to participating in discussions, voting, lobbying for a particular result, or any other use of the authority of office. In each instance of a conflict of interest, Mr. Hartman would further be required to satisfy the disclosure requirements of Section 3(j) as set forth 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 Second Class Township Code. Conclusion: As a Township Supervisor for Jackson Township, Mr. Charles Hartman is a public official subject to the provisions of the Ethics Law. In his capacity as a public official, Mr. Hartman would have a conflict of interest as to any matter before the Board of Supervisors relating to a Sewage Enforcement Officer (SEO) — either from within or outside of the Township — if the SEO would have the authority to review Hartman's projects. Conflicts would arise as to matters including but not limited to the SEO's continued employment /appointment, compensation, benefits, and the like. Mr. Hartman would have a conflict of interest as to any matter presented to the Board of Supervisors by such SEO. Mr. Hartman would have a conflict of interest in any matter before the Board of Township Supervisors involving himself and /or any of his clients. In each instance of a conflict of interest, Mr. Hartman would be required to abstain from any participation of any nature whatsoever and he would be required to satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Gates /Hartman,, 96 -568 June 12, 1996 Page 6 the Commission within thirty (30) days may result in the dismissal of the appeal. Tftferely, Vincent J. op o Chief Counsel