Loading...
HomeMy WebLinkAbout97-633 WashingtonADVICE OF COUNSEL December 15, 1997 Paul R. Washington Commissioner, Third Ward - Reserve Twp. 481 Irwin Lane Pittsburgh, PA 15212 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 97 -633 Re: Conflict, Public Official /Employee, Township, Commissioner, Sanitary Sewer Line, Sewer Tap -In Fee, Assessment, User Fee, Class /Subclass. Dear Mr. Washington: This responds to your letter of November 18, 1997 by which you requested advice from the State Ethics Commission based upon the facts which you submitted in conjunction with the facts set forth in a letter dated November 11, 1997 from Brian H. Ludwig, Esquire, Solicitor for Reserve Township, to the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Township Commissioner as to his participation in a vote on a sanitary sewer assessment issue where the Commissioner is one of approximately 48 individual residential property owners affected and each such property owner would be required to pay the identical user fee to the Township. Facts: As Third Ward Commissioner for Reserve Township, you request an advisory from the State Ethics Commission. Several years ago, Reserve Township installed a new sanitary sewer line in an area within the Third Ward of Reserve Township. The sewer line is known as the Hoffman Road /Irwin Lane sanitary sewer. Your home, along with approximately 48 other individual residences, is serviced by this sanitary sewer line. Except for residents who were exempted based upon income parameters, each resident along the sewer line paid a $ 1,000 sewer tap -in fee to Reserve Township. In addition, each resident, except those who were exempted based upon income parameters, also paid front - footage assessments directly to the Township. The front - footage assessment amounts varied from property to property. The assessment for your property was approximately $2,500. Both the sewer tap -in fee and the front - footage assessment for your property were paid prior to your taking office. Washington, 97 -633 December 15, 1997 Page 2 Subsequent to the installation of the sewer line, it was determined that the Township had erred in the process of acquiring right -of -ways for the sewer line. Appraisals of the right -of -way property to be acquired should have been paid by the Township, not by the individual homeowner. In order to rectify the issue, the Township hired a company to perform an appraisal of each resident's property to be acquired for the right -of -way. The total amount identified by the appraisal company for all right -of -way property along the Hoffman Road /Irwin Lane sewer line was approximately $30,000. This amount would be divided proportionately among all of the property owners along the sewer line based upon the amount of right -of -way property to be acquired from each property owner. You state that you personally will not receive any payment from the Township for the right -of -way because the sewer line does not directly impinge upon your property. To recoup the monies to be paid for the right -of -way payments, the Township is considering implementation of a sewer user fee. A draft ordinance has been created that will charge each user along the line a fee for using the sewer. The amount of the user fee would be identical for each user along the sewer line. The user fee is currently a matter of contention among the Township Commissioners. It is your belief that because you are included in a group of more than 45 property owners who would all be required to pay an identical user fee, you would not receive a pecuniary benefit. It is noted that in Solicitor Ludwig's November 11, 1997 letter, he states his opinion that it is improper for a Commission Board Member to deliberate and vote on a sanitary sewer assessment issue on properties serviced by the sewer when one of the subject properties is the Commissioner's own residence. 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. As Third Ward Commissioner for Reserve Township, Allegheny County, 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: Washington, 97 -633 December 15, 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. 65 P.S. §402 (Emphasis added). 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. Washington, 97 -633 December 15, 1997 Page 4 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, halaim, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. A use of authority of your public office that would financially benefit you with regard to your own property would form the basis for a conflict of interest, unless one of the statutory exceptions to the definition of "conflict or conflict of interest" would apply. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. In this case, if the class /subclass exception in the above definition of "conflict or conflict of interest" applies, i.e., if you are a member of a class /subclass of such residential property owners and if you are affected to the same degree as the other members of the class /subclass, you do not have a conflict of interest. Under the facts which you have submitted, it would appear that the class /subclass exception may apply. The facts which you have submitted specifically represent that every one of the approximately 48 property owners affected would be responsible to pay "an identical user fee to the Township." (Letter of November 18, 1997). If the only financial effect upon you in this matter would be as a property owner and would be identical to the effect upon the approximately 47 other residential property owners affected by the user fee, the above statutory exception would apply and you would not have a conflict of interest in the matter. However, you are cautioned that this Advice is issued based upon the facts which have been submitted. If there would be other financial impacts which have not been included in the facts submitted to this Commission, the class /subclass exception might not apply. 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 Third Ward Commissioner for Reserve Township, Allegheny County, you are a public official subject to the provisions of the Ethics Law. A use Washington, 97 -633 December 15, 1997 Page 5 of authority of your public office that would financially benefit you with regard to your own property would form the basis for a conflict of interest, unless one of the statutory exceptions to the definition of "conflict or conflict of interest" would apply. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Based upon the facts which have been submitted, you would not have a conflict of interest as to the proposed user fee which would charge each user, including you and approximately 47 other residential property owners, a fee for using the sewer line, if the class /subclass exception to the definition of "conflict or conflict of interest" applies, i.e., you truly are a member of a class /subclass of such residential property owners and if you are affected to the same degree as the other members of the class /subclass. However, if there are other financial impacts which have not been included in the facts submitted, the class /subclass exception might not apply. 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 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. i r ) cerely, j 4) Vincent J. Dopko Chief Counsel