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HomeMy WebLinkAbout98-532 BehringerMichael P. Behringer 36 Treasure Lake DuBois, PA 15801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 19, 1998 98 -532 Re: Conflict, Public Official /Employee, Township Supervisor, Business with which Associated, Treasure Lake Property Owners Association, TLPOA. Dear Mr. Behringer: This responds to your letter of February 15, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether and to what extent the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a township supervisor in matters involving a property owners association, where the township supervisor is employed by that property owners association as a patrolman with its security police department. Facts: You are an elected Supervisor for Sandy Township, in Clearfield County. You are also employed full -time by the Treasure Lake Property Owners Association (TLPOA). The TLPOA is a non - profit organization that represents the property owners of a private planned residential development (PRD) in Sandy Township. The TLPOA is responsible for the management of the PRD and its amenities, which include several restaurants and bars, two major golf courses, a marina, and a campground. The TLPOA has its own Road Department and an extensive administrative office. The TLPOA has a large employee pool with several departments. You are employed by the TLPOA as a patrolman with the security police department. Your responsibilities are to enforce TLPOA and state laws on over 100 miles of roadway. About 46% of the residents of Sandy Township live in the said PRD, and the Township Board of Supervisors spends a significant amount of time on TLPOA - related items. Additionally, the TLPOA purchases road salt and other items from Sandy Township. You state that the Manager of Sandy Township feels that, because you are employed by the TLPOA, you have a conflict of interest and should not vote on any issues relating to the TLPOA "from road salt to subdivision changes." You disagree. You believe that you would only have a conflict of interest in matters affecting the security department of the TLPOA. You contend that any other TLPOA matters would benefit the community as a whole and not you. Behringer, 98 -532 March 19, 1998 Page 2 You ask for an advisory from the State Ethics Commission on the issue of your voting, as a Sandy Township Supervisor, on matters regarding the TLPOA. 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. As a Township Supervisor for the Township of Sandy, Clearfield 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: 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, Behringer, 98 -532 March 19, 1998 Page 3 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. 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(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 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 Behringer, 98 -532 March 19, 1998 Page 4 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 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. Behringer, 98 -532 March 19, 1998 Page 5 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. Given that you are employed by the TLPOA, the TLPOA itself — and not merely its security police department — is a business with which you are associated. The fact that the TLPOA is a non - profit organization would not alter the above conclusion that the TLPOA is a business with which you are associated. First, the definition of the term "business" as set forth in the Ethics Law is very broad. Novak, Opinion No. 91 -009. The TLPOA would be within that definition either as an "association" or "organization." Second, the fact that the TLPOA 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 TLPOA 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 its employee. Thus, you would, in your capacity as a Township Supervisor, have a conflict of interest in any matter that would result in a private pecuniary benefit to your employer, the TLPOA. This would be true regardless of whether the matter in question would relate to the security department specifically. Thus, for example, you would have a conflict of interest in matters involving the TLPOA's purchase of road salt from the Township, as well as subdivision changes. 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. As for Section 3(f) of the Ethics Law, it would appear from the facts which you have submitted, that a business with which you are associated — the TLPOA — is entering into contracts with the governmental body with which you are associated — Sandy Township — by which Sandy Township disposes of certain supplies. You are advised that to the extent such contracts would be valued at $500 or more, the restrictions of Section 3(f) set forth above would have to be observed. 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. Behringer, 98 -532 March 19, 1998 Page 6 Conclusion: As a Township Supervisor for the Township of Sandy, Clearfield County, you are a public official subject to the provisions of the Ethics Law. Given that you are employed by the TLPOA, the TLPOA itself — and not merely its security police department — is a business with which you are associated. You would, in your capacity as a Township Supervisor, have a conflict of interest in any matter that would result in a private pecuniary benefit to your employer, the TLPOA, regardless of whether the matter in question would relate to the security department specifically. 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 restrictions of Section 3(f) must be observed as to the TLPOA's contracts with Sandy Township where such contracts are valued at $500 or more. 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). 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. Syrcerely, Vincent J. Dopko Chief Counsel