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HomeMy WebLinkAbout97-626 LeBlancJan N. LeBlanc 71 Bali Hai Road Mechanicsburg, PA 17055 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 18, 1997 97 -626 Re: Conflict, Public Official /Employee, Township Supervisor, Private Employment, Landscape Architecture Firm, Business with which Associated. Dear Ms. LeBlanc: This responds to your letter of October 15, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Township Supervisor as to matters involving her private employment with a landscape architecture firm. Facts: As a Supervisor for Silver Spring Township, you request an advisory from the State Ethics Commission. You were issued Advice of Counsel No. 94 -602 on September 16, 1994 regarding a potential conflict of interest and are now requesting an updated advisory based upon the following information. In 1994, you were offered a marketing position with H. Edward Black and Associates, P.C. (Black and Associates), a local landscape architecture firm. At that time, you were head of a Capital Campaign for a project on which Black and Associates was one of the professionals. You were advised by this Commission that you could not work for Black and Associates and continue the fund raiser. Based upon that advisory, you waited until Black and Associates had concluded their contract with Dauphin County (your employer and their client) and began working for Black and Associates on a part-time basis in June, 1997. During that three year period, you state that the job offer with Black and Associates was still standing and because of that you took the conservative approach and did not vote, as a Township Supervisor, on any matters before the Board which were related to Black and Associates (generally subdivision or land development plans). Your decision to abstain from matters relating to Black and Associates became a major issue in the May primary. One of your fellow Supervisors published an article in The Patriot Watch, a personal newsletter which he distributes to approximately one -half LeBlanc, 97 -626 November 18, 1997 Page 2 of the households in Silver Spring Township, which stated that you were of little value to the Board because you could not advise your fellow Supervisors on matters related to Black and Associates. You state that although you survived the May primary, the issue has not gone away. Bill Dunn (Dunn), Chairman of the Silver Spring Township Board of Supervisors, informed you that several other Board Members are unhappy because you cannot offer input on plans submitted by Black and Associates. You asked Dunn and H. Edward Black of Black and Associates to submit letters to you stating their positions on this matter. You have enclosed copies of those letters which are incorporated herein by reference. Dunn indicates in his letter that he is concerned that developers will feel that they must utilize Black and Associates in order to ease the plan approval process in the Township. You state that Black has discussed with you the possibility of serving only your existing client base when contemplating new projects in Silver Spring Township in an effort to limit the number of plans upon which you cannot vote. You state that the lack of input allowed in this situation is creating a hardship for you. You would like to be publicly involved in reviewing, but not voting upon, plans submitted by Black and Associates. Your intent is to provide public comment solely upon the aspects of a Black and Associates plan which does not work properly. You would not privately discuss any matters regarding Black and Associates with your fellow Supervisors; nor would you vote on any such plans. You ask whether your "middle ground" proposal is permissible under the Ethics Law and if not, what the penalties are for violating the Act. You further ask whether a complaint must be filed by a resident to initiate action. You conclude by asking what else you need to know about your exposure in these situations. 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 Silver Spring Township, you are a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence you 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: LeBlanc, 97 -626 November 18, 1997 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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 LeBlanc, 97 -626 November 18, 1997 Page 4 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 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 voting 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 Act 9 of 1989 to the question you pose, Black and Associates is a business with which you are associated as that term is defined under the Ethics Law. Consequently, you would have a conflict in participating in matters as to Black and Associates. A conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving his private employer, business, or business clients. Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. In such instances, the public official /public employee is required to abstain and to satisfy the disclosure requirements of Section 3(j). A use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. A conflict would also encompass situations where you would not vote but merely offer public commentary. The fact that your commentary would be limited to aspects of Black and Associates' plans that "do not . . . work properly" does not provide an exception. In theory, commentary which is negative would appear not to create a conflict as being adverse to your employer and hence not generating a "private pecuniary benefit." However, in reality, such negative commentary could result in requiring revisions or modifications which would generate additional fees by the business with which you are associated. LeBlanc, 97 -626 November 18, 1997 Page 5 Therefore, there is no "middle ground" in these circumstances. You would have a conflict as to matters involving Black and Associates for which you must not participate. Further, you would be required to observe the disclosure requirements of Section 3(j) of the Ethics Law. As to your inquiry about the penalties for violating the Ethics Law, Section 9(a), (b), and (c) provide: Section 9. Penalties (a) Any person who violates the provisions of section 3(a), (b) and (c) is guilty of a felony and shall be fined not more than $10,000 or imprisoned for not more than five years, or be both fined and imprisoned. (b) Any person who violates the provisions of section 3(d) through (j), section 4 or section 5(a) is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or be both fined and imprisoned. (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay a sum of money equal to three times the amount of the financial gain resulting from such violation into the State Treasury or the treasury of the political subdivision. Treble damages shall not be assessed against a person who acted in good faith reliance on the advice of legal counsel. 65 P.S. § §409(a), (b), and (c). Regarding your question about complaints initiating action, investigations may also be instituted by the "own motion" of the Executive Director which usually occurs via referrals from other agencies. Lastly, as to your inquiry about other information as to your "exposure in this type of situation," the above has sought to provide general guidance as well as specific answers to your inquiries. However, I am enclosing a copy of the Ethics Law as well as a Guide to the Public Official and Employe Ethics Law. In the event that you have other specific inquiries, additional advice may be solicited from the Commission. 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 Supervisor for Silver Spring Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a conflict exists as to participation in mattes involving Black and Associates, a business with which you are associated. In such instances, there is no middle ground for LeBlanc, 97 -626 November 18, 1997 Page 6 conflicts. You must not participate in any matters involving Black and Associates, even those actions which in theory appear to be adverse to Black and Associates. 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, ncent '1Dopko Chief Counsel