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HomeMy WebLinkAbout98-503 LewisSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL •January 14, 1998 Gary P. Lewis, Esquire Baer, Romain & Abramson 1288 Valley Forge Road Suite 63 PO Box 952 Valley Forge, PA 19482 -0952 98 -503 Re: Conflict, Public Official /Employee, Supervisor, Second -Class Township, Plaintiff, Lawsuit against Township and Municipal Authority. Dear Mr. Lewis: This responds to your letter of December 8, 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 who is a plaintiff in a lawsuit against the township and the local municipal authority. Facts: You request an advisory on behalf of Michael Krestynick ( Krestynick), a Township Supervisor for Washington Township in Berks County, Pennsylvania. The Washington Township Board of Supervisors is a three member Board. Krestynick was elected Township Supervisor on November 4, 1997. In his private capacity, Krestynick and 53 other Washington Township citizens are plaintiffs in litigation against Washington Township and the Washington Township Municipal Authority. The lawsuit, Robert McCluskey, et al. v. Washington Township and Washington Township Municipal Authority, No. 6585 Equity 95, was filed in the Court of Common Pleas of Berks County, Pennsylvania in or about April, 1995. The suit seeks relief under four separate legal theories challenging the validity of the construction of a multi - million dollar sewer project. Count I is against both the Township and the Authority, and involves defective advertisement. Count II is against the Authority only, and involves alleged Sunshine Law violations. Count III is against both the Township and the Authority and challenges the reasonableness of sewer service. Count IV is against the Authority only and involves claims of misrepresentation and equity. Lewis, 98 -503 January 14, 1998 Page 2 On or about June 30, 1997, the Township's Motion for Summary Judgment was granted and all claims against the. Township were dismissed. The only pending matter between the Township and the Plaintiffs (including Krestynick) is the Township As Petition for Counsel Fees, which Petition has not yet been decided. As for the Authority, the Washington Township Municipal Authority filed a Motion for Partial - Summary Judgment. The Court dismissed Count I against the Authority and held that the other three Counts would proceed to trial. The case is in limbo, and the trial has not been completed. On November 20, 1997, the Court issued an Order against the Plaintiffs (including Krestynick), directing that they. show cause why matters should not be settled, discontinued and ended in that the Court believes the case has been settled. However, you state that the Plaintiffs do not believe the case has been settled, and the Authority has requested that trial be rescheduled. No decision has yet been made by the Court as to whether the trial will be rescheduled. You note that in the election, Krestynick defeated Elaine Pennington, who is also one of the 54 Plaintiffs involved in the lawsuit. Ms. Pennington previously obtained an Advice of Counsel related to the issues which you have raised (Pennington, Advice of Counsel No. 97 -569). Although Krestynick believes that there is no factual difference between Ms. Pennington's previous inquiry and his own present inquiry, he wishes to confirm that understanding. Additionally, Krestynick seeks responses to the following specific inquiries:`; 1. Whether he may vote on matters pertaining to the Washington Township Municipal Authority that are not related to the pending litigation? 2. Whether he may „vote to appoint members to open seats on the Washington Township Municipal Authority? 3. Whether there would be any restrictions on what he may vote upon concerning the Washington Township Municipal Authority once the litigation against the Authority is concluded? 4. Whether there are any limitations as to what he may vote upon concerning Washington Township issues? 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Township Supervisor for Washington Township, Michael Krestynick (Krestynick) is a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Lewis, 98 -503 January 14, 1998 Page 3 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 affice 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. 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 Lewis, 98 -503 January 14, 1998 Page 4 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 above provisions of the Ethics Law to the circumstances which you have submitted, the fact that Krestynick is involved as a plaintiff in litigation against Washington Township 'and the Washington Township Municipal Authority would not preclude him from holding office as a Washington Township Supervisor. However, pursuant to Section 3(a) above, Krestynick could not use the authority of his public office as a Township Supervisor, or confidential information he would have access to by being in that position, for a prohibited private pecuniary benefit, such.as, for example, by taking action to reduce or eliminate personal liability for counsel fees as a Plaintiff in the aforesaid lawsuit. Your first specific ` "inquiry poses a general question as to whether Krestynick may vote on matters pertaining to the Washington Township Municipal Authority where such matters are not related to the pending litigation. Since you have posed a general question, the response must also necessarily be general. To the extent such matters would not result in, or advance the prospects of, a private pecuniary benefit within the context of Section 3(a), Krestynick would not have a conflict of interest. In response to your second specific inquiry regarding appointments to the Authority, such appointments to the Authority could impact upon the Authority's decisions concerning the aforesaid lawsuit. Therefore, Krestynick would have a conflict of interest as to such appointments (See, Bassi, Opinion No. 86- 007 -R; Woodrina, Opinion No. 90 -001). In response to your third specific inquiry, you have posed a general question as to whether Krestynick would continue to have restrictions on voting in matters involving the Washington Township Municipal Authority once the litigation has been concluded. It is impossible to foresee every possible situation which may arise, and so this Advice is necessarily limited to responding, generally, that to the extent any Lewis, 98 -503 January 14, 1998 Page 5 mater involving the Washington Township Municipal Authority would not result in, or advance the prospects for, a private pecuniary benefit within the context of Section 3(a), Krestynick would not have a conflict of interest. In response to your fourth specific inquiry, you have posed a general question as to whether there would be any limitations as to what Krestynick may vote upon concerning Washington Township. Krestynick would certainly have a conflict of interest in his public position with regard to the Township's deliberations, decisions, and other actions involving the lawsuit, including but not limited to its remaining claim against Krestynick and the other Plaintiffs for counsel fees. Beyond that, in the absence of specific factual circumstances, this advice must necessarily be limited to noting that to the extent other matters would not result in, or advance the prospects of, a private pecuniary benefit within the context of Section 3(a), Krestynick would not have a conflict of interest. In each instance of a conflict of interest, Krestynick would be required to abstain and to make disclosures pursuant to Section 3(j) above. 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 riot 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 for Washington Township in Berks County, Pennsylvania, Michael Krestynick (Krestynick) is a public official subject to the provisions of the Ethics Law. As one of 54 plaintiffs who have sued Washington Township and the Washington Township Municipal Authority, Krestynick would have a conflict of interest in his capacity as a Township Supervisor in matters involving that litigation. Pursuant to Section 3(a) of the Ethics Law, Krestynick could not use the authority of his public office or confidential information to which he has access by being in that position for a private pecuniary benefit, such as a private pecuniary benefit related to that lawsuit. Furthermore, Krestynick could not have access to confidential information involving the lawsuit. Krestynick would have a conflict of interest and could not participate in appointing members to open seats on the Washington Township Municipal Authority. In each instance of a conflict of interest, Krestynick would be required to abstain from participation and to satisfy the disclosure requirements of Section 3(j) as set forth 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 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 Lewis, 98 -503 January 14, 1998 Page 6 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. Sincerely, Vincent J. Dopk Chief Counsel