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HomeMy WebLinkAbout88-004 GollaEdward B. Golla, Esquire Nine West Pennsylvania Avenue P.O. Box 184 Stewartstown, PA 17363 Dear Mr. Golla: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING H..RRISEURG, PENNSYLVANIA 17120 O.'':NION OF THE COMMISSION DATE DECIDED 6 DATE MAILED 6/24/88 II. Factual Basis for Determination: 88-004 Re: Conflict of Interest, Borough Councilman, Voting on Matters as to the Borough Water /Sewer Authority, Private Litigation against the Borough Water /Sewer Authority This opinion is issued in response to your requests of March 29, and April 4, 1988. Whether the State Ethics Act imposes any restrictions or prohibition upon a borough councilmember participating in or voting on matters concerning a borough water /sewer authority when the borough councilmen is involved in litigation with that authority and the borough as to the requirement that he hook -up to the authority water system. You state that you represent Charles K. Herbert who has been a member since 1982 of the Stewartstown Borough Council, hereinafter Council. On April 9, 1984 a water system was purchased from the General Water Works Company of Harrisburg and is now currently owned by the Stewartstown Water /Sewer Authority hereinafter Authority. Following the passage of a borough ordinance which required a hook -up to the water system, Mr. Herbert and twenty other citizens in Stewartstown Borough filed suit in April, 1984 challenging the ordinance which prohibited these landowners from continuing to use their private water wells. You then state that Mr. Herbert has been advised by Council that since he is one of the plaintiffs in the litigation, he could not vote on any matter pertaining to the water system. Based upon the above, you request an advisory opinion as to whether Mr. Herbert would be preluded from voting on matters Ed.. trd B. Go1,. Esc Pa - ;e involving the Authority provided , .d rat' :ers directly with the litigation After noting thy involvin7 the Authority regularly sppe , ;iT the 3o7i ugh you, feel that a prohibition upon Mr. Ilerbert s pa :°tief.pation would disenfranchise Mr. Herbert and his constituents. Currently, you state that in March 7, 1933, `.he Vice President of Council presented a motion to cancel a three year contract of Robert Hunt, the Authority operator and replace saic contract, with a one year contract with a 31% salary increase. You advise that Mr. Herbert was told that he could not participate or vote on the matter. You conclude by questioning whether Mr. Herbert is precluded from voting on all matters or whether the conflict would be limited merely to those matters which would relate to the litigation that was commenced by Mr. Herbert and others against the Borough and the Authority. III. Discussion: As a member of Stewartstown Borough Council, Mr. Herbert is a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code X1.1; Rider, Order 490 -R. As such, his conduct must conform to the provisions of the Ethics Act. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). 6ection 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including . a gift, loan, political contribution, reward, or promise future employment based on any understanding that Edward B. Golla, Esquire Page 3 the vote, official action, or judgment of the public official 1r public employee candidate for public office mould be influenced thereby. 65 P.S. 403(b). The above quoted provisions of the Ethics Act provide that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he associated and no public official may receive anything of value, including the promise of future employment, on the understandLng that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. §403(a) and (b). Section 3(d) of the Ethics Act also provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph '9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission is also empowered to address other areas of possible conflict. 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the Preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting, Nelson, Opinion 85 -009; or where such an official or employee accepts compensation to which he is not entitled, Domalakes, Opinion 85- 010. In the instant matter, it is clear that Mr. Herbert is in all adversarial situation with the Authority in light of the fact that Mr. Herbert and others have instituted a law suit as private litigants against the Authority and the Borough. The foregoing legal action is of a personal nature and is not related to any Edward B. Golla, Esqui.: Page 4 official action by Mr. Herbert Svzmanowski, upiniorr 87 -002. The question. to be resolved is the extent to which Mr. Herbert's activities must be restricted in light of this coi: l_ct of interest. Under the foregoing circumstances, since Mr. Herbert is involved in personal litigation with the Water Authority, the Ethics Act would require that he abstain from participating or voting in all matters concerning the Water Authority. Although at first blush it would appear that he should only be restricted tc "those matters ... deal[ing] directly with the lit4gatioi.... ", tha underlying fact remains that he is in an adverse position w_th that Authority in light of the litigation. His conflict is not limited to just those matters that directly relate to the litigation. This Commission has determined that a public official should not participate in matters where his interest can be described as even indirect in nature. Welz, Opinion 86 -001 F it is very difficult if not impossible to say with ce ..tainty that certain matters which may currently be perceive:, as not having direct or indirect connection with the litigatirn may in the future have such a connection. If Mr. Herbert were to vote on something concerning the Water Authority which, aft€:. 1-1 fact, would impact upon the litigation, an ethics proh.i could arise for Mr. Herbert. In that instance, the claim by L. Herbert that he didn't think it was a problem at the time e voted would be of no avail since the action would have a1rea4 occurred. Further, consider the question of the modification of the three year contract with Robert Hunt to a one year contract with a 31% salary increase; on its face the contract does not appear to have even a remote interest with the litigation. However, it is possible that at some future time Mr. Hunt may become involved in that litigation in that he may be called upon by Borough Council to make a recommendation as to the litigati -n or to take or perform certain actions in relation thereto. Thus, if Mr. Herbert were to vote on Mr. Hunt's contract ani salary, such action would be a conflict. In this regard, it is noted that Mr. Herbert admitted that at the present the heads of the Sewer and Water Authority are combined into one coordinator position. The Preamble of the Ethics Act recites that public office is a public trust and that in order to strengthen the faith and confidence of the people in their government, the holders of public office should not act in a fashion to create a conflict nor the appearance of a conflict with the public trust. In this case, it is necessary under the Ethics Act for Mr. Herbert to recuse himself from participating or voting on matters with the Authority until the final resolution of this law suit agai, that Water Authority in light of the inherent conflict bet :aa Edward B. Golla, Esquire Page 5 his public position and his pwivpate interest in the litigation. Mr. Herbert must note his abstention of public record together with the reason for hi:- abstention. IV. Conclusion: As a member of the Borough Council of Stewartstown, Mr. Herbert is a "public official" subject to the provisions of the Ethics Act. Under the Ethics Act, during the pendency of the litigation against the Water Authority and the Borough, there is an inherent conflict of interest between his activity as a councilmember in voting on matters of the Borough Water Authority when he is a private litigant against the Water Authority. In light of the foregoing conflict, he may not vote in any matter involving the Water Authority. He must note his abstention of public record together with the reason therefor. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. such. This letter is a public record and will be made availabl ay Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, Vim► VC.1J.7 Joseph W. Marshall, III Chairman