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HomeMy WebLinkAbout98-519 HartzlerDonald R. Hartzler 627 Belleville Lane Belleville, PA 17004 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 4, 1998 98 -519 Re: Conflict, Public Official /Employee, Authority Member, Business with which Associated, Client, Reasonable Expectation of Business Relations, Sludge. Dear Mr. Hartzler: This responds to your letter of February 2, 1998, 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 municipal authority member /officer where the authority monitors "significant industrial users," and a business with which the member /officer is associated is considering purchasing equipment to apply sludge generated by one such "significant industrial user." Facts: As a Member and Vice Chairman of the Municipal Authority of Union Township (MAUT), which is located in the town of Belleville, in Mifflin County, PA, you seek an advisory from the State Ethics Commission. MAUT, the governmental body on which you serve, oversees the treatment of sewage received from its collection system in Union Township and monitors "significant industrial users." One such "significant industrial user" is Fairmont Foods. Fairmont Foods has a pre- treatment facility which generates sludge that is applied to agricultural land. In your private capacity, you manage a local agricultural business, Union Mill Division of Chemgro, Inc. (Union Mill). Union Mill specializes in soil fertility and custom application. Union Mill is considering purchasing equipment to land -apply manure from local farms as well as sludge generated by Fairmont Foods. You ask whether it is ethical and permissible for you, as a MAUT Member /Officer, to be involved with Fairmont on a contractual basis in the disposal of its pre- treatment waste. 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 Hartzler, 98 -519 March 4, 1998 Page 2 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 Member and Vice Chairman of the Municipal Authority of Union Township (MAUT), you are a public official subject to the Public Official and Employe Ethics Law ( "Ethics 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. "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 Hartzler, 98 -519 March 4, 1998 Page 3 immediate family is a director, officer, owner, employee or has a financial interest. 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. 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, 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 local agricultural business which you manage, Union Mill Division of Chemgro, Inc. (Union Mill) is a business with which you are associated. Hartzler, 98 -519 March 4, 1998 Page 4 It is generally noted that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated or its clients. Miller, Opinion No. 89- 024; Kannebecker, Opinion No. 92 -010. A conflict of interest would likewise exist where there would be a reasonable expectation of business involvement developing. Snyder, Order No. 979 -2 aff'd, 686 A.2d 843 (Pa. Commw. 1996); Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004. In such instances, the public official /public employee is required to abstain and to satisfy the disclosure requirements of Section 3(j). Based upon the facts which you have submitted, there is a reasonable and legitimate expectation of a business relationship forming between Union Mill, the business with which you are associated, and Fairmont Foods. Union Mill is planning to purchase equipment to apply the sludge generated by Fairmont Foods. Therefore, you would have a conflict of interest in matters before MAUT involving Fairmont Foods. 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. 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 Municipality Authorities Act. Conclusion: As a Member and Vice Chairman of the Municipal Authority of Union Township (MAUT), you are a public official subject to the provisions of the Ethics Law. Based upon the facts which you have submitted, there is a reasonable and legitimate expectation of a business relationship forming between Union Mill, the business with which you are associated, and Fairmont Foods. Therefore, you would have a conflict of interest in matters before MAUT involving Fairmont Foods. 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(111, 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. Hartzler, 98 -519 March 4, 1998 Page 5 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. cerely, U A incent `J.1 Dopko Chief Counsel