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HomeMy WebLinkAbout96-574 SmithGregory G. Smith Township Manager /Secretary Township of Moon Municipal Center 1000 Beaver Grade Road Moon Township, PA 15108 -2984 Dear Mr. Smith: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 24, 1996 96 -574 Re: Conflict, Public Official /Employee, Township Board of Supervisors, Purchase of Personal Computers to be placed in Supervisors' homes. This responds to letters of May 28, 1996 and June 19, 1996 by 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 as to the Township's proposed purchase of personal computers to be placed in each Supervisor's home which would be used to receive Township correspondence via electronic mail. Facts: You have been authorized by all five members of the Moon Township Board of Supervisors to request an advisory from the State Ethics Commission. Moon Township is considering the purchase of personal computers for the elected Board of Supervisors for the purpose of receiving much of the Board's correspondence via electronic mail. The computers would be placed in each Supervisor's home for his term of office and would be reclaimed by the Township at the expiration of the term. It is your belief that initiating such a system would provide a substantial savings to the Township in terms of paper use, copier use and personnel costs. The Board has expressed concern over any ethical issues with respect to the purchase of these computers and their use by the Board Members for non - Township matters. Specifically you pose the following questions: (1) Are there any ethical issues associated with the Township providing personal computers to the elected Board of Supervisors for their use during their terms in office in their homes as a cost saving measure for the Township? (2) Are there any ethical issues associated with the Supervisors utilizing these computers for non - Township business in addition to the Township related business for which the computers are being provided during their term in office? Smith, 96 -574 July 24, 1996 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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. Elected Members of the Moon Township Board of Supervisors would be considered public officials as that term is defined under the Ethics Law, and hence they 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. 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: Smith, 96 -574 July 24, 1996 Page 3 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. In applying the above provisions of the Ethics Law to the instant matter, it is noted that pursuant to Section 3(a) of the Ethics Law, a public official /public employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /public employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. The Ethics Law would preclude the use of governmental telephones, postage, staff, equipment, research materials, personnel or other property, or government working hours, as a means, in whole or part, to carry out private business activities. Pancoe, supra. Thus, although Section 3(a) would not form a basis for inquiring into the propriety of the Township's providing personal computers to Members of the Board of Supervisors for use in their homes for Township matters, Section 3(a) would prohibit the use of Township personal computers and /or related Township equipment or services, such as, for example, access to on -line services, for private purposes. Any use of the Township personal computers, related equipment, or services for private purposes would constitute a use of the authority of public office for a private pecuniary benefit since the public Smith, 96 -574 July 24, 1996 Page 4 official would therefore not have to pay for such facilities himself. See, Rakowsky, Order No. 943. The fact that the proposed Township provision of personal computers to Supervisors in their homes for Township use might be a cost saving measure for the Township would not in any way impact upon or exonerate a Supervisor as to a violation of Section 3(a) related to his personal use of such equipment and services. 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: Elected Members of the Moon Township Board of Supervisors would be considered public officials subject to the provisions of the Ethics Law. If the Township would provide personal computers to the Members of the Board of Supervisors to be placed in their homes for their use during their terms in office for Township purposes, pursuant to Section 3(a) of the Ethics Law, such computers, and any other Township provided equipment and /or services could not be used by the Township Supervisors for non - Township purposes. 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 forma/ Opinion will be issued by the Commission. Any such appeal must be in writing and must be ac tua //y 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. S ncOrely, ent J. Dop Chief Counsel