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HomeMy WebLinkAbout97-638 TittertonJohn D. Titterton 1021 River Road Washington Crossing, PA 18977 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 23, 1997 97 -638 Re: Conflict, Public Official /Employee, Township, Supervisor, Development, President, Preservation Foundation, Non - Profit, Business With Which Associated, Township Funding. Dear Mr. Titterton: This responds to your letter of November 20, 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 a Township fund to acquire tracts of land for open space preservation, and requests for participation in same, where the Supervisor is the President of a local citizens' group which is seeking to participate in such funding from the Township so that it may effectuate an agreement with a developer that it has opposed. Facts: You have been elected to the office of Upper Makefield Township Supervisor and will take office on January 1, 1998. You request an advisory from the State Ethics Commission as to a potential conflict of interest. Since 1993, a local developer has been attempting to build on a 22 acre tract of vacant commercial land in the village of Washington Crossing in Upper Makefield Township, Bucks County. For the past two years, you have been President of the 'Washington Crossing Preservation Foundation (WCPF), a local non - profit citizens group which is opposed to the development. Through the efforts of the WCPF, an agreement with the developer has been concluded whereby the developer is to sell his interest in the land to the WCPF. You state that while the battle against the developer has drawn much media attention, this agreement is not common knowledge at this time, although relevant public entities are aware of its existence. To raise the funds needed for the acquisition of this land, the WCPF will approach several private and public funding sources. One of the public sources that Titterton, 97 -638 December 23, 1997 Page 2 will be approached is Upper Makefield Township. The Township recently created a fund to acquire tracts of land for open space preservation. WCPF plans to approach the Upper Makefield Township Board of Supervisors in early 1998 with a request for participation. You will take office as Supervisor on Upper Makefield Township's five member Board of Supervisors on January 1, 1998 and will be seated on the Board when the request for open space funds is made by WCPF. You will not be the person making the presentation to the Board. You state that should the Board approve the use of Township funds for this transaction, neither you nor any of your relations will gain financially either directly or indirectly from that decision. You live at least a mile away from the tract of land and have no relatives who own property in that area. You state that your property value and /or the property values of your relatives will not be affected by this transaction. Finally, you state that you have no business dealings whatsoever with any party directly or indirectly connected with this transaction. Over the past two years, prior to your becoming an elected public official, you have made no secret of your opposition to the development. You campaigned against the development and won the primary and general elections by significant margins. You state that if there is no conflict of interest for you under the Ethics Law, it is your intention to vote in a manner consistent with the position you have represented to the public. You ask whether you would have a conflict of interest under the facts which you have submitted. 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. Upon taking office as a Supervisor for Upper Makefield Township, you will be a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence you will be 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: Titterton, 97 -638 December 23, 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. Section 3(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract Titterton, 97 -638 December 23, 1997 Page 4 valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through . an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Section 3(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Titterton, 97 -638 December 23, 1997 Page 5 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, Maker, 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. The WCPF is a "business" with which you, as its President, are associated. First, the definition of the term "business" as set forth in the Ethics Law is very broad. The WCPF would at least be an "organization" within that definition. Second, the fact that the WCPF is a non - profit organization would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the preceding forms of entities in the list. See, Soltis- Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96- 006). Since the WCPF is a "business" as that term is defined in the Ethics Law, it is clearly a business with which you are associated in your capacity as an officer, specifically, its President. See, IsL, at 31 -32. Therefore, regardless of the submitted fact that the matter of the WCPF's participation as to this Township fund for open space preservation would not impact upon you or your family in a financial way, it is clear that you would nevertheless have a conflict of interest under the Ethics Law in this matter based upon the financial impact upon the WCPF. Titterton, 97 -638 December 23, 1997 Page 6 The WCPF is seeking funding from the Township. Such funding would be a clear financial benefit to the WCPF, sufficient in and of itself to establish your conflict of interest. In this case, as in any 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. Until such time as the WCPF's participation as to this funding is fully and finally completed, you should abstain from any participation as to this Township fund, both as to the WCPF and as to other applicants. The fund may have Limited resources, and a use of authority of office either directly in favor of the WCPF or adversely to its competitors for such funding could result in a private pecuniary benefit to the WCPF by insuring that such funds are available for its use. See, Pepper, Opinion No. 87- 008. 1. In sum, you should: play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; play no role in establishing or implementing the criteria by which selections for program participation are to be made; 3. play no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc., and 5. abstain and satisfy the disclosure requirements of Section 3(j) above. The abstention and disclosure would be required not only as to the WCPF's application, but also as to other individuals or entities who might be competing for available funds. As for Section 3(f), it is noted that this sort of program may require participants to enter into contracts and /or subcontracts. If the WCPF, as a participant in this Program, would enter into a contract with Upper Makefield Township, the governmental body with which you are to be associated, or would enter into a subcontract with any "person" (as defined above) who has a contract with the said governmental body, Section 3(f) of the Ethics Law would impose the following requirements if the contract or sub - contract would be valued at $500.00 or more: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; 3. public disclosure of the award of the contracts; and 4. no supervisory or overall responsibility for the implementation or administration of the contract or sub - contract by the public official /employee. Titterton, 97 -638 December 23, 1997 Page 7 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: Upon taking office as a Supervisor for Upper Makefield Township, you will be a public official subject to the provisions of the Ethics Law. The Washington Crossing Preservation Foundation (WCPF), a local non - profit citizens' group of which you are President, is a "business" with which you are associated for purposes of the Ethics Law. With regard to the WCPF's anticipated request to participate in the Township's fund for acquiring tracts of land for open space preservation, pursuant to Section 3(a) of the Ethics Law, you would, in your capacity as a Township Supervisor, have a conflict of interest as to that fund, not only as to the WCPF's request to participate, but also as to such requests from other persons or entities competing for such funds. 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. Specifically, you must play no role in establishing the criteria under which the program will operate, play no role in implementing the criteria for selecting applicants, play no role in selecting or reviewing applicants, use no confidential information and finally have no involvement with the administration of the program, until such time as the WCPF's participation as to that fund is fully completed. The requirements of Section 3(f) of the Ethics Law noted above, to the extent applicable, must be observed. 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 Titterton, 97 -638 December 23, 1997 Page 8 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, \ c incent . Dopko Chief Counsel