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Home My WebLink About97-628 HeasleyEd Heasley PO Box 176 Leeper, PA 16233 -0176 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 3, 1997 97 -628 Re: Conflict, Public Official /Employee, Township, Supervisor, Vote, Central Water and Sewer Project. Dear Mr. Heasley: This responds to your letter of October 27, 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 regarding his participation in a central water and sewer project where the Supervisor resides in the affected area. Facts: As a Township Supervisor, you request an advisory from the State Ethics Commission. The Township is beginning a central water and sewer project. You live within the affected area, but the other two Supervisors do not. You state that you have been told that central water and sewage may increase property values. You ask whether you should vote or abstain on the project, since you may be in a position as a property owner to receive personal gain in the future. Lastly, you note that a community meeting was held and a mailing survey was conducted and that over 70% of the affected property owners supported the project. 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. Heasley, 97 -628 December 3, 1997 Page 2 As a Township Supervisor, 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: 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. 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 Heasley, 97 -628 December 3, 1997 Page 3 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. Based upon the facts which you have submitted, only general guidance may be given. An increase in property value may form the basis for a conflict of interest. However, if your property's value would increase as a result of the Township's central water and sewer project, you could nevertheless participate as to that project if the class /subclass exception in the above definition of "conflict or conflict of interest" would apply, i.e., if you would be a member of a class /subclass of such residents and if you would be affected to the same degree as the other members of the class /subclass. Under the facts which you have submitted, it is impossible to determine with certainty whether property values would increase and to what extent you would be affected as compared to other residents. In Laser, Opinion No. 93 -002, the Commission was given far more factual detail than you have provided. Yet, in the absence of appraisals, the impact upon the value of the property in question was speculative, and based upon the factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Consequently, based upon a factual insufficiency, this Advice is necessarily limited to providing the above general guidance. 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, you are a public official subject to the provisions of the Ethics Law. An increase in property value may form the basis for a conflict of interest. However, if your property's value would increase as a result of the Township's central water and sewer project, you could nevertheless participate as to that project If the class /subclass exception in the above definition of "conflict or conflict of interest" would apply, i.e., if you would be a member of a class /subclass of such residents and if you would be affected to the same degree as the other Heasley, 97 -628 December 3, 1997 Page 4 members of the class /subclass. Based upon a factual insufficiency, it cannot be conclusively determined whether you would have a conflict of interest in this matter. 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. S nperely, Vincent J. Dopko Chief Counsel 'c Tito