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HomeMy WebLinkAbout88-008 DeLanoMr. Robert F. DeLano P.O. Box 245 Frederick, PA 19435 Dear Mr. DeLano: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: 9/28/88 DATE MAILED: 10/13/88 88 -008 Re: Conflict of Interest, Township Supervisor, Proposed Landfill, Supervisor as Member of a Citizens' Group Filing Lawsuit; Appeal of Advice of Counsel This responds to your appeal of the Advice of Counsel, No. 88- 584 -A, issued on August 12, 1988. Whether under the Ethics Act a second class township supervisor may participate or vote in matters relating to a proposed landfill when the supervisor is a member of a citizens group which is in litigation as to an existing incinerator on the site of the proposed landfill and when the incinerator is operated by the same owners of the landfill but through a different corporate entity. II. Factual Basis for Determination: By letter of May 11, 1988, you requested advice of the State Ethics Commission as to whether you, a Supervisor in New Hanover Township, Montgomery County, could vote or participate in a matter of a proposed landfill. You noted that your opposition to the landfill was your main election platform on which 70% of the voters supported your strong stand on the issue. Pursuant to your letter of request, Advice of Counsel 88 -584 was issued on June 14, 1988. After noting that you posed your question in general terms, the advice provided a general response that you could vote in the matter of the landfill provided you had no personal, financial or private interest in the matter. By letter of June 29, 1988, you forwarded a second letter seeking additional advice. You indicated that you are a member of an environmental group, the Paradise Watch Dogs, which has instituted litigation as to possible operating violations of a permit issued to Mr. Robert F. DeLano Page 2 the owners or operators of an incinerator which is on the same site as the proposed landfill. You also noted that the same owners who operate the incinerator seek the proposed landfill but do so through a different corporate entity, the New Hanover Corporation. You concluded by noting that the litigation involves no monetary consideration. Advice of Counsel 88- 584 -A, issued on August 12, 1988, cited Golla, Opinion, infra and concluded that your involvement in litigation against the incinerator, which is on the same site and which is operated by the same owners via a different corporate entity, precluded you from voting on the proposed landfill under Sections 3(a) and 3(d) of the Ethics Act. By letter of August 26, 1988, you appealed the above advice. Finally, by letter of September 8, 1988, you were advised of the date, time and location of the public meeting of this Commission. In appealing the Advice of Counsel, you assert that the advice, which found a conflict based upon your participation in a legal action seeking compliance with federal and state environmental regulations, seems contradictory. You reiterate that your participation will not result in any financial gain and the prosecution of the lawsuit could have been instituted by the Board of Supervisors. You argue that since the municipality may prosecute such an action pursuant either to the Clean Air Act or Pennsylvania Air Pollution Control Act, the same prosecution by a civic group should not preclude you as a supervisor from participating regarding the landfill. III. Discussion: As a New $anover Township Supervisor, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code 51.1; Welz, Opinion 86 -001. 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). Mr. Robert F. DeLano Page 3 Section 3(a) specifically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation provided for by law for himself, a member of his immediate family or a business with which he is associated. Under the above quoted provision of law, this Commission has determined that a conflict would arise where a public official attempts to serve one or more interests that are adverse. Alfano, Opinion 80 -007. This Commission has also determined that a public official may not act in a situation where he has a financial interest even though that interest may be indirect in nature. Welz, supra. Furthermore, a public official may not act in a matter which would favor his private personal interest over that of the public interest. Huff, Opinion 84 -015. Section 3(d) of the Ethics Act 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). This Commission has interpreted and applied Section 3(d) quoted above by referencing the preamble of the Ethics Act which sets forth the purpose of the Act which is to insure that public officials and employees should act in a fashion to strengthen the faith and confidence of 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 of a conflict with the public trust. 65 P.S. S401. In the instant matter, you have a conflict of interest regarding the landfill. Since you are involved with the citizens group lawsuit against the incinerator which is on the site of the proposed landfill, you have a personal interest in this matter. Although you state that you are merely attempting to ensure that the incinerator operates within its permit as per DER regulations, you are nevertheless involved as a member of the Paradise Watch Dogs in litigation against that incinerator and hence you have a personal interest in this matter. See Golla, Opinion 88 -004, wherein this Commission determined that a borough councilman could not vote or participate in matters concerning the borough water authority when he was involved with a group of borough citizens in litigation against that authority. Just as in Golla, supra, you have a conflict resulting from your involvement in the litigation as to the incinerator. The fact that the landfill is under a separate corporate entity, New Hanover Corporation, is insufficient to negate a conflict since the Mr. Robert F. DeLano Page 4 incinerator and landfill are on the same site and owned by the same individuals. Additionally, this Opinion should not be construed to mean that a candidate's stand on an issue creates a conflict as to his voting on an issue; to the contrary, the Ethics Act does not preclude such action. However, when that public official becomes personally, financially or privately involved with that issue which is separate and apart from his public office, then a conflict exists which requires abstention. In this instance, you chose to become a member of the class action suit against the owners of the incinerator /landfill; a conflict arose and you must abstain regarding matters concerning the landfill. Golla, supra. Since your conflict exists in this case because of your participation in the litigation as to the incinerator, you have the opportunity to remove yourself from the conflict if you elect to withdraw from the lawsuit. If you remove yourself as an active participant in Paradise Watch Dogs and withdraw from the litigation, you will no longer have a conflict under these facts and circumstances. You then may participate and vote as to the matter of the landfill, incinerator and New Hanover Corporation under the Ethics Act. Lastly, 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. IV. Conclusion: As a New Hanover Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Under Section 3(a) and 3(d) of the Ethics Act, you may not participate or vote relating to a proposed landfill when you are a member of a citizens group which is in litigation as to an incinerator which is owned by the same individuals who propose the landfill. However, if you remove yourself as an active participant in Paradise Watch Dogs and withdraw from the lawsuit, the Ethics Act would not preclude you from voting or participating as to the landfill, the incinerator or New Hanover Corporation. Lastly, the propriety of your conduct has only been addressed under the Ethics Act. The Advice of Counsel is modified. 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. VJD /sfd Mr. Robert F. DeLano Page 5 This letter is a public record and will be made available as 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, t Joseph W. Marshall, II Chairman