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HomeMy WebLinkAbout97-610 RobertsRichard J. Roberts, Jr., Esquire Leavens & Roberts 29 East Independence Street PO Box 518 Shamokin, PA 17872 -0518 Dear Mr. Roberts: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 30, 1997 97 -610 Re: Conflict, Public Official /Employee, Township, Township Engineer, Surveyor, Subcontractor. This responds to your letter of September 2, 1997 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 Engineer who formerly subcontracted work to an independent surveyor with regard to subdivision or land development plans prepared by the surveyor and submitted to the Township for approval. Facts: As Solicitor for the Board of Supervisors of Montour Township (Board), Columbia County, and with the authorization of the Board and the Township Engineer, you request an advisory from the State Ethics Commission. On September 26,1994, Advice of Counsel No. 94 -609 was issued to you. That Advice concluded that the Montour Township Engineer would have a conflict of interest as to any work submitted by an independent surveyor with whom the Township Engineer had an on -going business relationship, specifically where the Township Engineer subcontracted certain survey work to the surveyor. You state that the "on -going business relationship" between the Township Engineer and the surveyor was terminated on or about April 28, 1997. The Township Engineer advises that he had never previously had a business relationship with the surveyor and that he does not anticipate having any future business relationship with the surveyor. In Tight of the change in circumstances, specifically, the termination of the business relationship between the Township Engineer and the surveyor, you ask for an advisory as to any prohibitions or restrictions imposed upon the Township Engineer by the Ethics Law with regard to the subdivision or land development plans prepared by the surveyor and submitted to the Township for approval. Roberts, 97 -610 September 30, 1997 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. The Township Engineer for Montour Township is a public official /public employee as that term is defined under the Ethics Law, and hence 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. 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. Roberts, 97 -610 September 30, 1997 Page 3 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. In each instance of a conflict, 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 applying the above provisions of the Ethics Law to the facts which you have submitted, the most applicable Commission precedent is Kannebecker, Opinion No. 92- 010, in which the Commission addressed conflict of interest issues as to present /former business clients. The Commission stated: We believe that you would indeed have a conflict as to an ongoing client or a client who is on a retainer even if you would not represent the client as to a matter pending before the Township. However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior representations of any given client and the period of time over which that occurred. If and when such specific instances arise, you may seek additional advice as to each circumstance since all that we may do at this juncture is establish general guidelines and cannot proffer advice on every possible scenario which may arise. Roberts, 97 -610 September 30, 1997 Page 4 i at 5. The facts which you have submitted are that the Township Engineer no longer has any business relationship with the surveyor, and that he does not anticipate having any future business relationship with the surveyor. The facts which you have submitted do not include any unusual factors which might require special consideration by the Commission. Consequently, based upon the facts which you have submitted, the general rule enunciated in Kannebecker would apply and the Township Engineer would not have a conflict of interest as to subdivision or land development plans prepared by the surveyor and submitted to the Township for approval. This Advice is based upon the facts as submitted and is expressly and explicitly conditioned upon the assumptions that: (1) There neither has been nor would be any use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law; (2) There neither has been nor would be any improper understanding(s) violative of Sections 3(b) and /or 3(c) of the Ethics Law; (3) Any and all business relationships between the Township Engineer and the surveyor have in fact legitimately terminated; (4) There is no reasonable and legitimate expectation of any future business relationship(s) between the Township Engineer and the surveyor; (5) There would be no instances by which the Township Engineer would continue to do business with the surveyor, for example, through third parties or straw parties; and (6) There is no other basis for a conflict of interest. The above are not intended to suggest that the Township Engineer in the instant matter would engage in such conduct, but rather, to make clear the circumstances under which the Commission could find violations of the Ethics Law. 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: The Township Engineer for Montour Township is a public official subject to the provisions of the Ethics Law. Based upon the facts which have been submitted, the Montour Township Engineer would not have a conflict of interest with regard to subdivision or land development plans prepared by an independent surveyor with whom the Montour Township Engineer formerly had an ongoing business relationship, conditioned upon the assumptions and qualifications noted 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 Roberts, 97 -610 September 30, 1997 Page 5 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 1. 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. incent J. opk Chief Counsel