HomeMy WebLinkAbout98-540 ShulerJudith A. Shuler, Township Manager
London Grove Township
550 E. Baltimore Pike, Ste. 200
West Grove, PA 19390
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 6, 1998
98 -540
Re: Conflict, Public Official /Employee, Township, Manager, Subdivision Officer,
Planning Commission Secretary, Zoning Hearing Board Clerk, Zoning and Code
Enforcement Officer, Golf Course, Son, Immediate Family, Employment,
Business with which Associated.
Dear Ms. Shuler:
This responds to your letter of March 4, 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 township manager, who also serves as the
subdivision officer, planning commission secretary, zoning hearing board clerk and
zoning and code enforcement officer, whose son has been offered employment at a
new golf course which is under her purview as zoning and code enforcement officer
and subdivision officer.
Facts: You have served as the Township Manager for London Grove Township
(Township), where your husband has served as supervisor, since February of 1997.
Prior to that time you had worked part -time as Township Subdivision Officer beginning
in 1990, and additionally as Zoning /Code Enforcement Officer beginning in 1992,
which became a full -time position. The positions you currently hold as Manager are
Subdivision Officer, Secretary of the Planning Commission, Clerk to the Zoning Hearing
Board, and Zoning and Code Enforcement Officer.
You state that your son, a college freshman, has applied to and been offered
employment at a new golf course in the Township. He has pursued this employment
on his own in the hope of helping him determine if he wants to pursue a Golf Course
Management curriculum at college. You also state that this golf course project, which
is almost complete, is under your purview as Zoning /Code Enforcement Officer and
Subdivision Officer. The golf course encompasses a Township -owned WWTP and the
residential portion, 500 units, has yet to receive approval for construction. Your
husband has voted and will vote on waiver requests and residential unit phases when
such matters come before the Township Board.
Shuler, 98 -540
April 6, 1998
Page 2
You ask for an advice of the State Ethics Commission as to whether your son's
employment by the new golf course in the Township would present a conflict of
interest to you, as Township Manager, or your husband under the Ethics Law.
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), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
Second, this advisory will only address your conduct because your husband,
although given the opportunity to join in your request, has not done so.
As Township Manager for London Grove Township, you are a public employee
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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.
Shuler, 98 -540
April 6, 1998
Page 3
"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.
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
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 applying the above provisions of the Ethics Law to your inquiry, you are
advised that Section 3(a) of the Ethics Law does not prohibit public officials /public
employees or immediate family members from having outside business activities or
employment; however, the public official /public employee may not use the authority
of his public position — or confidential information obtained by being in that position
— for the advancement of his own private pecuniary benefit or that of an immediate
family member or that of a business with which he or an immediate family member is
associated. Pancoe, Opinion 89 -01 1. Examples of conduct that would be prohibited
under Section 3(a) would include: (1) the pursuit of a private business opportunity
Shuler, 98 -540
April 6, 1998
Page 4
while acting in a public capacity, Metrick, Order No. 1037; (2) the use of governmental
facilities, such as governmental telephones, postage, staff, equipment, research
materials, or other property, or the use of governmental personnel, to conduct private
business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in
an official capacity as to matters involving the business with which the public
official /public employee is associated in his private capacity, such as the
review /selection of its bids or proposals, Gorman, Order No. 1041.
If the private employer or business with which the public official /public
employee or his immediate family member is associated would have a matter pending
before the governmental body, the public official /public employee would have a
conflict of interest as to such matter. (Miller, Opinion No. 89 -024. In each instance
of a conflict of interest, the public official /public employee would be required to abstain
from participation and to satisfy the disclosure requirements of Section 3(j).
As to your case, the Ethics Law imposes no prohibition as to your son in his
employment with the golf course. You as a public employee may not use your position
as a means in advancing your son's employment. Once again, it is not suggested that
you would engage in such conduct and this Advice is offered to provide a complete
response to your inquiry.
You would have a conflict of interest as to matters involving the golf course
since your son is a member of your immediate family as that term is defined under the
Ethics Law. Further, since the golf course has employed your son, the golf course is
a business with which a member of your immediate family is associated. Therefore,
as a township manager or in any of your enumerated positions, you would have a
conflict as to matters involving the golf course that come before the Township
governmental bodies wherein you serve. In such instances, you can not participate in
these matters involving the golf course and must observe the disclosure requirements
as set forth in Section 3(j) of the Ethics Law noted 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 codes.
Conclusion: As Township Manager for London Grove Township, you are a
public employee subject to the provisions of the Ethics Law. As Township Manager,
Subdivision Officer, Planning Commission Secretary, Zoning Hearing Board Clerk and
Zoning and Code Enforcement Officer, you have a conflict as to matters involving a
golf course which is a business with which a member of your immediate family is
associated. You cannot participate in matters involving the golf course, must abstain
and must comply with the disclosure requirements of Section 3(j) of the Ethics Law.
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.
Shuler, 98 -540
April 6, 1998
Page 5
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.
erely,
scent J. I`• pko
Chief Counsel