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HomeMy WebLinkAbout98-527 LoveMark S. Love, Esquire P.O. Box 349 Tannersville, PA 18372 Dear Mr. Love: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 11, 1998 98 -527 Re: Conflict, Public Official /Employee, Member; Township Zoning Hearing Board, Gifts, Complimentary Stay, Ski Resort. This responds to your letter of February 6, 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 member of a township zoning hearing board with regard to accepting complimentary stays at a ski resort located within the township. Facts: You are a member of the Pocono Township Zoning Hearing Board in Monroe County. You are not the Board's Solicitor. Periodically, Camelback Ski Resort (Camelback), which is located in Pocono Township, offers you complimentary stays for you and your family which could have values in excess of $ 100. You also believe that similar offers are being made or have been made to other township officials. You have submitted a copy of one such recent offer from Camelback, dated February 5, 1998. It is noted that the said offer states, inter alia: "This is our way of expressing our thanks for all the assistance Pocono and Jackson Townships provide to Camelback." You ask for an advisory on whether it would be proper for you to accept such complimentary offers. 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. Love, 98 -527 March 11, 1998 Page 2 It is further initially noted that this advisory is limited to addressing your proposed conduct. As to all others, you would be considered a third party without legal standing. As a Member of the Zoning Hearing Board for Pocono Township in Monroe County, Pennsylvania, 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. "Immediate family." A parent, spouse, child, brother or sister. 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, Love, 98 -527 March 11, 1998 Page 3 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. If you were to accept the complimentary stay(s) at Camelback Ski Resort, such would constitute gift(s) under the Ethics Law. There is no per se prohibition under the Ethics Law as to the receipt of true, "no- strings- attached" gifts by a public official /employee. See, Cooper, Opinion No. 92 -009 (Citing Wolfgang, Opinion No. 89- 028). Of course, a gift or gifts valued in the aggregate at $250 or more must be disclosed on the Statement of Financial Interests, pursuant to Section 5(b)(6) of the Ethics Law. 65 P.S. §405(b)(6) (Note: Pursuant to Section 5(d) of the Ethics Law, 65 P.S. §405(d), the State Ethics Commission increased the statutory reporting threshold for "gifts" from $200 to $250 effective with the forms due to be filed in 1998.) Such disclosure must include the name and address of the source, the amount of the gift or gifts, and the circumstances of each gift. Gifts which do not meet the aggregate threshold of $250 need not be disclosed. As for the question of conflict of interest, there have been various cases before this Commission where the Commission has found violations based upon particular facts Love, 98 -527 March 11, 1998 Page 4 where public officials have accepted gifts from vendors or individuals and acted upon matters which the donors had pending before the governmental body. In Sickles, Order No. 901, the State Ethics Commission held that a school district Food Service Director violated Section 3(a) of the Ethics Law, Act 9 of 1989, when she used the authority of her position as Food Service Director to select and place orders with a particular vendor who offered "premium points" — that could be used to receive gifts — and then used the premium points for a wicker furniture set for herself rather than for a credit to the district's account. In Helsel, Order No. 801, the State Ethics Commission held that a School Director violated Section 3(a) of the State Ethics Act (Act 170 of 1978) by using public office to obtain a financial gain for himself and members of his immediate family by supporting or voting for vendors as to school district contracts in return for gifts or gratuities. The Commission further held that Helsel violated Section 3(b) of the Ethics Act by soliciting or receiving gifts or gratuities of value from vendors who held school district contracts based upon the understanding that his vote, official action or judgment would be influenced thereby. In Volpe, Order No. 579 -R and Smith, Order No. 578 -R, township supervisors were found to have violated Section 3(a) of the Ethics Act by using office to obtain an all expense paid trip to Europe for two weeks for themselves and various family members from a developer who had matters pending before the township. Volpe and Smith were also found to have violated Section 3(b) of the Ethics Act in that they received the trip to Europe based upon the understanding that it would influence their action as township supervisors relative to matters that were pending before the township by the developer. In Montemayor, Order No. 574, one of the other township supervisors who did not accept the trip to Europe but who did travel to New York City with the same developer, did not violate Section 3(a) where he paid for his own share of the travel expenses and lodging but did accept opera tickets from the developer (valued at $13 each). However, the Commission noted that the fact that the supervisor traveled with the developer who had been actively seeking township action on various proposals, and the fact that he accepted opera tickets from that developer, created the "appearance" of a conflict of interest. In Feller, Order No. 576 -R, a township manager was found not to have violated either Section 3(a) or Section 3(b) by accepting free chlorine for his private swimming pool from the owner of a corporation which had contracts with the township, where there was insufficient evidence to establish the use of public office or acceptance of anything of value to influence his official action relative to the receipt of the chlorine. A technical violation of Section 3(a) was found as to Feller's acceptance and use of free tickets for sporting events from a cable television corporation which had contract with the township. No violation was found as to the acceptance of blankets, vice grips, and flasks from the cable company which were turned over to the Pennsylvania Association of First Class Township Commissioners. In a related case, Zollo, Order No. 577, a township supervisor did not violate Section 3(a) or 3(b) where he received a thirty -five pound container of swimming pool chlorine from the township manager (Feller) who had received it from the aforesaid owner of the chemical company, or where he accepted three sets of free tickets from the cable corporation two years after the contract was awarded and before any rate increase request was submitted. In that case, Zollo offered to pay Feller for the chlorine; did not personally use the tickets but passed them on to others; and further denied that his acceptance of said tickets or of the chlorine affected any township decisions that he made. Although in any given instance, the decision as to whether a conflict of interest is presented by the receipt of a gift is determined on a case -by -case basis, the Love, 98 -527 March 11, 1298 Page 5 circumstances which you have presented would appear to be adequate to support the finding of a conflict of interest assuming you would use the authority of office or confidential information in matter(s) related to the donor. Thus, although the Ethics Law would not preclude you from accepting the aforementioned gift or gifts, you would have a conflict of interest in matters involving the donor. In each instance of a conflict of interest, you would be required to abstain from participation and to 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 respective municipal code. Conclusion: As a Member of the Zoning Hearing Board for Pocono Township, Monroe County, you are a public official subject to the provisions of the Ethics Law. Complimentary stays for you and your family at Camelback Ski Resort, a ski resort located within Pocono Township, would constitute a gift or gifts to you which would have to be reported on your Statement of __Financial Interests if the aggregate value would meet or exceed $250. Although the Ethics Law would not preclude you from accepting such gift(s), conditioned upon the assumption that there would be no "understandings" which would transgress Sections 3(b) and /or 3(c) of the Ethics Law, you would have a conflict of interest in matters involving Camelback Ski Resort. 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(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. Si j cerely, Vincent J. D Chief Counsel