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HomeMy WebLinkAbout96-611 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 26, 1996 96 -61 1 Re: Conflict, Public Official /Employee, Township, Board of Supervisors, Township Engineer, Sewage Enforcement Officer, Contract for Police Services. This responds to your letters dated October 24, October 30, November 6, and November 13, 1996 by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Ethics Law, a Township Supervisor may participate in the decision to award a police contract to a County Regional Police Department, where, in a separate capacity, he serves as a Township Engineer and Sewage Enforcement Officer for another township which is a participating municipality with the County Regional Police Department. Facts: As Solicitor of Township A in County B, Pennsylvania, and on behalf of C who has served since January, 1995 as a Supervisor for the Township A Board of Supervisors, a three member board of a second class Township, you request an advisory from the State Ethics Commission on his behalf. C is a self - employed Engineer and serves in the appointed positions of Township Engineer and Sewage Enforcement Officer (SEO) for Township D. Township D is the only County B municipality represented by C. C's duties as Township Engineer include, but are not limited to, the construction, reconstruction, maintenance, and repair of streets, roads, pavements, sanitary sewers, bridges, culverts, and other engineering work as directed by the Board of Supervisors. Additionally, C prepares plans, specifications, and estimates of work undertaken by the Township and furnishes reports, information, or estimates on any Township engineering work submitted by the Board of Supervisors. Township A does not maintain its own police department and currently contracts with a neighboring municipality, Township E, for its police protection. Pursuant to the present contract, Township A pays an agreed upon price to Township E for police protection. Township A has contracted for police protection with Township E for approximately 17 years. Confidential Advice of Counsel, 96 -611 November 26, 1996 Page 2 In the summer of 1996, the Township A Board of Supervisors requested that Township E and the County B Regional Police Department, an eight municipality regional police department, submit bid proposals for police protection for the upcoming calendar year. Township D, the entity for which C serves as Township Engineer and SEO, is one of the eight municipalities affiliated with the County B Regional Police Department. In your letter of November 13, 1996 amending your original request, you state that representatives from Township E and the County B Regional Police Department were given the opportunity to make presentations to their respective police departments at a regularly scheduled meeting of the Board of Supervisors and each entity agreed to do so. The County B Regional Police Department presentation was made by the Chief of Police as well as two Police Commissioners who are elected officials of the affiliated municipalities. Each member municipality of the County B Regional Police Department is entitled to one seat on the Police Commission regardless of the size of the municipality or the financial contribution. One of the two Commissioners at the presentation was F, Chairman of the Township D Board of Supervisors. Mr. F, in his capacities as Township Supervisor and Police Commissioner, advocated that Township A join the County B Regional Police Department. Township D, the municipality which Mr. F serves as Chairman, is also the municipality for which C serves as Township Engineer and SEO. You state that it is unclear to what extent, if at all, Township D would benefit or be harmed, either directly or indirectly, if Township A affiliated itself with the County B Regional Police Department. Your specific inquiry is whether it would be a conflict of interest for C, acting in his capacity as Township Supervisor, to be involved in the award of the police contract to the County B Regional Police Department where, in a separate capacity, he serves as Township Engineer and SEO for another township which is affiliated with the Regional Police Department. 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 Township A, County B, 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. Confidential Advice of Counsel, 96 -611 November 26, 1996 Page 3 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: 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 Confidential Advice of Counsel, 96 -611 November 26, 1996 Page 4 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 Section 3(a) of Act 9 of 1989 to the specific question you pose, C would have a conflict if he uses the authority of office or confidential information to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. In this case, there would be no benefit to C as to his employment in Township D, assuming that there are no improper understandings (an example of such an understanding would be offering his vote for continued employment) prohibited by Sections 3(b) and (c) of the Ethics Law. As to Township D, if there were any benefit, it is clear that the municipality is not a "business with which he is associated" as that term is defined in the Ethics Law. See, Warso, Order 974, wherein the Commission concluded that a municipal authority is not a "business" as defined in the Ethics Law. Accordingly, based upon the above factual assumptions, C would not have a conflict as to his participation as a Township A supervisor on the issue of the regional police force. 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 a Supervisor for Township A, County B, C is a public official subject to the provisions of the Ethics Law. Subject to the qualifications noted above, a Township Supervisor may participate in the decision to award a police contract to Confidential Advice of Counsel 96 -611 November 26, 1996 Page 5 a County Regional Police Department, where, in a separate capacity, he serves as a Township Engineer and Sewage Enforcement Officer for another township which is a participating municipality with the County Regional Police Department since the other Township is not a "business" with which he is associated" under the Ethics Law. 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. 7 'n cerely, incent . Iopko Chief Counsel