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HomeMy WebLinkAbout99-530 ShivesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 30, 1999 William R. Shives HCR 80, Box 66 Needmore, PA 17238 99 -530 Re: Conflict; Public Official /Employee; Township Supervisor; Excavating Business; Installation of Septic Systems; Sewage Enforcement Officer. Dear Mr. Shives: This responds to your letter of March 9, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt, sea., presents any prohibition or restrictions upon a township supervisor as to installing septic systems in his private capacity as the owner of an excavating business, in the same township in which he serves as supervisor. Fac : You have served for 24 years as a Supervisor for Belfast Township, Fulton County. You are one of three Township Supervisors, who are responsible for maintaining Township roads, handling citizen complaints, approving plot plans and subdivisions, and managing other aspects of local government. A Township Sewage Enforcement Officer is responsible for all perc tests, the issuance of septic permits, and the inspection of systems. You state that the Township Supervisors do not make any decisions regarding the installation or approval of septic systems in the Township. You are in the process of starting an excavating business through which you plan to install septic systems. You ask for an advisory from the State Ethics Commission as to whether, in your private capacity, you may install septic systems in Belfast Township or surrounding townships, given that you also serve as a Township Supervisor. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Township Supervisor for Belfast Township, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. FAX: (717) 787 -0806 • Web Site: www.ethics.state.Qa.us • e -mail: ethics@state.pa.us Shives, 99 -530 March 30, 1999 Page 2 Section 1103(a) of the Ethics Act provides: 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. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. 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. "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. "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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. (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 Shives, 99 -530 March 30, 1999 Page 3 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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee may not use 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. Section 3(a) of the Ethics Law applies to restrict a public official /public employee in his public capacity rather than in his private business dealings. It is clear that the authority of office of a Township Supervisor would ordinarily include official decisions pertaining to the SEO such as his continued employment, compensation, benefits, and the like. On the other hand, the authority of an SEO would include review of sewage system work such as that performed by you. Thus, if the Township's own SEO would review your projects, you would be seeking a favorable review by the very same SEO over which you exercise official control as a Township Supervisor. The Commission considered a similar situation in Bassi, Opinion 86- 007 -R. In Bassi, a county commissioner sought to enter into a lease with an authority upon which a county employee served as an authority member. The Commission's Opinion stated, inter alia, that the county employee /authority member should abstain from participating in any matter relating to the lease. The Commission further stated that if the county commissioner received the lease, he could not take any future action related to the county employee in matters pertaining to his employment as well as matters submitted to the commission by that county employee. Public disclosure was also required along with abstention. Bassi, supra, at 3-4. Although Bassi was decided under former Act 170 of 1978, the Commission's reasoning in Bassi would continue to apply under the current Ethics Act. See, Woodring, Opinion 90 -001. Therefore, if the Township's own SEO reviewed your Shives, 99 -530 March 30, 1999 Page 4 projects, you would have a conflict of interest in any matter before the Board of Township Supervisors involving the SEO as a Township employee (such as the continuation of employment, compensation, benefits and the like), as well as in any matter presented to the Board by the SEO. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As Township Supervisor for Belfast Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act ") 65 Pa.C.S. §1101 et seg. Section 1103(a) of the Ethics Act would not prohibit you from installing septic systems in a private capacity in a township wherein you serve as a supervisor. In your capacity as a public official, you would have a conflict of interest as to any matter before the Board of Supervisors relating to a Sewage Enforcement Officer (SEO) - if the SEO would have the authority to review your projects. Conflicts would arise as to matters including but not limited to the SEO's continued employment /appointment, compensation, benefits, and the like. You would have a conflict of interest as to any matter presented to the Board of Supervisors by such SEO. You would have a conflict of interest in any matter before the Board of Township Supervisors involving yourself and/ or any of your clients. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and would be required to 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 1 107(1 1), an 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, provided 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. rely, Vincent '1 Dopko Chief Counsel