HomeMy WebLinkAbout99-513 StokumGary Stokum
386 Atlasburg Rd.
Burgettstown, PA 15021
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 22, 1999
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.pa.us
99 -513
Re: Simultaneous Service; Township Supervisor and Conservation District Manager.
Dear Mr. Stokum:
This responds to your letter of January 20, 1999, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act imposes any
prohibition or restrictions upon a Township Supervisor from simultaneously serving or
being employed as a Conservation District Manager.
Facts: You have been the District Manager for the Washington County
Conservation District for 15 years. You currently serve as Chairman of the Cross Creek
Township Board of Supervisors in Washington County, having served on the Board for
the past two years.
Pursuant to the Conservation District Law, Conservation Districts are governed
by the State Conservation Commission, which is appointed by the Governor, and by a
seven - member Board of Directors appointed by the County Commissioners. One member
of the Board of Directors must also be a County Commissioner and appointments to the
Board of Directors must be approved by the State Conservation Commission.
The Department of Environmental Protection ( "DEP ") has assigned programs to
Conservation Districts such as the Erosion and Sedimentation Control Program; certain
programs pertaining to Chapter 105 of the Clean Streams Law; responsibilities as to the
State Nutrient Management Act; and the Dirt and Gravel Road Program; as well as
possibly the Biosolids Program and Flood Plain Monitoring in the future.
Conservation Districts review plans concerning Erosion and Sediment Control
Plans submitted for approval by local municipalities and often work closely with the
municipalities concerning grants for the stabilization of dirt roads through the Dirt and
Gravel Road Program.
As District Manager, you oversee employees who review and approve plans for
Cross Creek Township ( "Township "), where you serve as Supervisor. However, as the
Township is very small, you estimate that your Conservation District may receive one
plan every ten years from Cross Creek Township.
Stokum, 99 -010
February 22, 1999
Page 2
In 1998, the Township submitted a bridge replacement plan to your Conservation
District for approval. You were not involved as to: the preparation of the plan, which
was prepared and submitted by the municipal engineer; your staff's review or approval
of the plan; or in any inspection of the project in progress. You state that you removed
yourself from the process completely to avoid any potential conflict of interest. However,
since you are the Chairman of the Board of Supervisors, you signed the permit
application to DEP.
You ask for an advisory from the State Ethics Commission as to whether you may
simultaneously serve as Township Supervisor and Conservation District Manager and,
if so, you request guidance on "dealing with projects from [your] municipality that are
submitted to [your] Conservation District for review and approval." You specifically ask
whether your conduct in the above - detailed situation was proper.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107(11)
of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As a Township Supervisor for Cross Creek Township in Washington County, you
are a "public official" as that term is defined in the Public Official and Employee Ethics
Act ( "Ethics Act ") and hence you are subject to the provisions of the Ethics Act. 65
Pa.C.S. §1102; 51 Pa. Code §11.1.
Sections 1103(a) and 1 103(j) of the Ethics Act provide:
Section 1 103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(j) Voting conflict. -- 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,
Stokum, 99 -010
February 22, 1999
Page 3
the member who has abstained shall be permitted to vote to
break the tie vote if disclosure is made as otherwise provided
herein.
65 Pa.C.S. § § 1103(a), (j).
The following terms that pertain to conflicts of interest under the Ethics Act are
defined as follows:
Section 1102. Definitions.
65 Pa.C.S. §1102.
"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. The term 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.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, §2. There does not
appear to be any statutorily - declared incompatibility precluding simultaneous service in
the positions in question.
Turning to the question of conflict of interest, pursuant to Section 1103(a) of the
Ethics Act, 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,
a member of his immediate family, or a business with which he or a member of his
immediate family is associated.
Where simultaneous service would place the public official /public employee in a
continual state of conflict, such as where in one position he would be accounting to
himself in another position on a continual basis, there would be an inherent conflict (See,
Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to
be impossible, as a practical matter, for the public official /public employee to function
in the conflicting positions without running afoul of Section 1 103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under Section
1 103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position, but in each instance of a conflict of interest, the individual
would be required to abstain and to satisfy the disclosure requirements of Section
1 103(j) as set forth above.
Stokum, 99 -010
February 22, 1999
Page 4
In this case, based upon the facts which have been submitted, there does not
appear to be an inherent conflict that would preclude simultaneous service as Township
Supervisor and Conservation District Manager. Consequently, such simultaneous service
would be permitted within the parameters of Sections 1 103(a) and 1103(j).
There may be instances where you would have a conflict between your positions
as a Conservation District Manager and Township Supervisor. For example, you would
have a conflict as a Conservation District Manager as to plans or other matters which
would result in additional work for Township employees /road crew if you are a Township
employee who is employed as a roadmaster or in some other working position. You
would have a conflict if participation by you in one position may result in a pecuniary
benefit to you, an immediate family member, or a business with which you or an
immediate family is associated. In such instances of conflict, you must abstain and
observe the disclosure requirements of Section 1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Township Supervisor for Cross Creek Township in Washington
County, you are a "public official" subject to the provisions of the Ethics Act. you may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions
of Township Supervisor and Conservation District Manager, subject to the restrictions,
conditions and qualifications set forth above. Lastly, the propriety of the proposed
course of conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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.
S rely
Vincent ` Dopko
Chief Counsel