HomeMy WebLinkAbout98-596 AlegrantiConstance W. Alegranti
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 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 21, 1998
Re: Conflict; Public Official /Employee; Township Supervisor; Muncipal Authority
Member; Construction; Golf Course; Housing Units; Sewage Treatment Plant;
Golf Membership; Spouse.
Dear Ms. Alegranti:
This responds to your letter of August 20, 1998 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
prohibition or restrictions upon a township supervisor /municipal authority member in
voting on matters as to a township project involving a golf course, sewage treatment
plant, and housing units when the supervisor /authority member's spouse obtains a
family membership in the golf course.
Facts: You are currently a Supervisor in London Grove Township, as well as a
Member of the London Grove Township Muncipal Authority, which are both five -
member boards.
A project in the Township called "Inniscrone" consists of an 18 -hole private,
high -end golf club, spray irrigation sewage treatment plant, and 508 townhouses and
single - family dwellings. The homes and sewer system are under different ownership
from the golf course. The Township, not the Municipal Authority, will own the
treatment plant. Both the golf course and sewage treatment plant have received final
approval and are almost completed — nine holes of the golf course are complete and
in play, with the remaining nine holes still under construction. Approvals are still
required for the clubhouse and proposed halfway house. Both the golf course and
sewage treatment plant still come in with field changes /add -ons to their approved plan
and that the housing units will be constructed in stages with the first stage almost
ready for final approval.
You state that your husband has joined the said golf course which is a family
membership. You ask for an advisory from the State Ethics Commission as to whether
your spouse's membership in the golf course would affect your ability to vote an any
aspect of the "Inniscrone" project. You express your view that there would be no
conflict as to the housing and sewage treatment plant because they are under different
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.pa.us
98 -596
Alegranti, 98 -596
September 21, 1998
Page 2
ownership from the golf course. If there is a conflict on your part, you ask to what
aspects of the project would the conflict entail.
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 Supervisor in London Grove Township and a Member of the London Grove
Township Muncipal Authority, you are a public official as that term is defined in the
Public Official and Employee 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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
Alegranti, 98 -596
September 21, 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.
Section 3(a) of the Ethics Law prohibits a public official /public employee 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.
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 instant matter, it is
assumed that neither you nor your husband has any financial interest in the golf
Alegranti, 98 -596
September 21, 1998
Page 4
course, that is, neither of you is a director, officer, owner, employee or the holder of
a financial interest. Based upon the above factual assumption, your golf membership,
without any financial interest noted above, would not create a conflict on your part as
to participation or voting on the Township projects.
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.
Conclusion: As a Supervisor in London Grove Township and a Member of the
London Grove Township Muncipal Authority, you are a public official subject to the
provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you as
a township supervisor /municipal authority member in voting on matters as to a
township project involving a golf course, sewage treatment plant, and housing units
when your spouse obtains a family membership in the golf course, provided the golf
course is not a business with which you or your spouse is associated as that term is
defined under 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.
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,
incen' - Dop o
Chief Counsel