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HomeMy WebLinkAbout98-006 BehringerMichael P. Behringer 36 Treasure Lake DuBois, PA 15801 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Monsignor Joseph G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman DATE DECIDED: 7/24/98 DATE MAILED: 8/7/98 98 -006 Re: Conflict, Public Official /Employee, Township Supervisor, Business with which Associated, Treasure Lake Property Owners Association, TLPOA, Appeal of Advice. Dear Mr. Behringer: This Opinion is issued pursuant to your appeal of Advice of Counsel, No. 98- 532 issued March 19, 1998. I. ISSUE: Whether and to what extent the Public Official and Employee Ethics Law would restrict a township supervisor in matters involving a particular property owners association, where the township supervisor, in his private capacity, is employed by the property owners association as a patrolman with its security police department. II. FACTUAL BASIS FOR DETERMINATION: By faxed transmissions received April 17 and April 23, 1998, you timely appealed Behringer, Advice of Counsel, No. 98 -532, issued March 19, 1998. In your initial letter requesting an advisory, you provided facts which may be fairly summarized as follows. In your public capacity, you are an elected Township Supervisor for Sandy Township in Clearfield County. In your private capacity, you are employed full -time by the Treasure Lake Property Owners Association ("TLPOA ") as a patrolman with its security police department. Behringer, 98 -006 August 7, 1998 Page 2 The TLPOA is a non - profit organization. It represents the property owners of a private planned residential development ( "Development ") in Sandy Township. The TLPOA is responsible for managing the Development and its various amenities. The TLPOA has a large employee pool with several departments, an extensive administrative office, and its own Road Department. About 46% of the residents of Sandy Township live in the said Development. Thus, a significant amount of time is spent by the Township Board of Supervisors on TLPOA - related items. Furthermore, there are transactions between the TLPOA and Sandy Township involving purchases /sales of road salt and other items. You state that the Manager of Sandy Township feels that, because you are employed by the TLPOA, you have a conflict of interest and should not vote on any issues relating to the TLPOA "from road salt to subdivision changes." It is your position that you would only have a conflict of interest in matters affecting the security department of the TLPOA. You contend that any other TLPOA matters would benefit the community as a whole and not you. You concluded your request by asking whether you may vote on matters regarding the TLPOA. Advice of Counsel No. 98 -532 reached the following conclusions: 1) As a Township Supervisor, you are a "public official" and are subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "); 2) As a property owners association, the TLPOA would be within the definition of "business" as set forth in the Ethics Law; 3) The fact that the TLPOA is non - profit would not disqualify it as a "business "; 4) Based upon your status as an employee of the TLPOA, the TLPOA would be a business with which you are associated; 5) In your capacity as a Township Supervisor, you would have a conflict of interest in matter(s) before the Township which would result in a private pecuniary benefit to your employer, the TLPOA, regardless of whether such matters would relate to the TLPOA's security department specifically; 6) In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law; and 7) The restrictions of Section 3(f) of the Ethics Law would have to be observed as to contracts between the TLPOA and Sandy Township where such contracts would be valued at $500 or more. The letter by which you appealed the Advice of Counsel did not delineate the nature of your objection to the Advice of Counsel. Rather, you simply indicated that you were exercising your right to appeal. Behringer, 98 -006 August 7, 1998 Page 3 By letter dated July 7, 1998, you were notified of the date, time and location of the public meeting at which the appeal was to be considered. It is noted that you neither attended nor were represented at that public meeting. However, on July '17, 1998, you filed a Brief in which you presented the following arguments. You state that you agree with the "Purpose" of the Ethics Law as it is set forth in Section 1 of the Law. You also agree that the Ethics Law should be liberally construed. However, you contend that "reasonableness should always be a benchmark." Brief, at 3. It is your view that "extreme" interpretations will have a "chilling effect" and will discourage people from seeking or holding public office, and that the Advice of Counsel takes an "extreme position." You assure this Commission that you would abstain in any situation in which you would have a financial interest. You concede that, hypothetically, you would have a conflict of interest in decisions concerning a "business" with which you would be associated. However, you do not believe that the TLPOA, which acts as the governing body of the Treasure Lake development, would "neatly fit" within the Ethics Law's definition of "business." You point out that the TLPOA is a non - profit organization. You state that the TLPOA does not own a substantial amount of assets compared to the size of Treasure Lake. Additionally, you argue that your own job as a patrolman /security officer is "de minimis" within the entire TLPOA organization. You argue that your decisions as a Township Supervisor with respect to Treasure Lake would, for the most part, have absolutely no effect on your position as a patrolman. You cite the example of road salt transactions as having no impact whatsoever on your duties or financial interest in a private capacity. Finally, you argue that a "common sense reading" is needed in this case, so that the intent of the Ethics Law will be achieved. Our review of this matter is de novo. III. DISCUSSION: We shall initially set forth the pertinent provisions of the Ethics Law which are to be applied in this matter. Sections 3(a) and 3(f) of the Ethics Law provide as follows: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and Behringer, 98 -006 August 7, 1998 Page 4 subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. §§403(a), (f). The elements of a conflict of interest are set forth in the statutory definition which provides as follows: "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. 65 P.S. §402. The following terms pertinent to our analysis are defined in the Ethics Law as follows: "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or Behringer, 98 -006 August 7, 1998 Page 5 65 P.S. §402. arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. Finally, Section 3(j) of the Ethics Law provides as follows: (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. 65 P.S. §403(j). In applying the above provisions of the Ethics Law to the facts which you have submitted, we agree with and affirm Advice of Counsel, No. 98 -532. Each conclusion reached in the Advice of Counsel is based upon established precedent and /or a straightforward application of the pertinent provisions of the Ethics Law. First, it is clear — and it would appear that you do not contest the fact — that in your capacity as a Township Supervisor for Sandy Township, you are a "public official" and are subject to the provisions of the Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 seq. See, e.g., Snyder, Order No. 979 -2, aff'd., Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996). Second, the TLPOA is clearly a "business." The TLPOA is an association. The statutory definition of "business" specifically includes associations. Although the Advice of Counsel correctly noted our view that the definition of the term "business" is very broad, See, Novak, Opinion No. 91 -009, in this case, even a strict interpretation would reach the same conclusion. Behringer, 98 -006 August 7, 1998 Page 6 Your argument as to the amount of the TLPOA's assets compared to the size of Treasure Lake has no legal relevance under the Ethics Law. Furthermore, the Advice of Counsel was correct in its conclusion that the fact that the TLPOA is non - profit would not disqualify it as a "business." In Soltis - Sporano, Order No. 1045, we held that a non - profit corporation would be within the definition of "business." Id. at 31 (Citing Confidential Opinion No. 89 -007; McConahy, Opinion No. 96 -006). Our analysis as set forth in that Order equally applies to the other specific forms of entities listed in the statutory definition, including "associations." Our interpretation of the definition is that the word "or" in the final phrase "or any legal entity organized for profit," is disjunctive, and that the repeated use of the word "any" within the definition precludes any interpretation that the words "legal entity organized for profit" modify any of the preceding itemized forms of entities. Despite the submitted fact that the TLPOA is "non- profit," it is clearly a "business" as defined by the Ethics Law. Having established that the TLPOA is a "business," it is also certain that the TLPOA is a business with which you, as its employee, are associated. Your employment status in and of itself is sufficient to satisfy the statutory definition of "business with which he is associated." Your characterization of your job as "de minimis" within the entire TLPOA organization has no legal relevance under the Ethics Law. Given that the TLPOA is a business with which you are associated, a straightforward application of Section 3(a) mandates the further conclusion that in your capacity as a Township Supervisor, you would have a conflict of interest where the use of the authority of your public office, or confidential information obtained by being in that position, would result in a private pecuniary benefit for your employer, the TLPOA, regardless of whether there would be any financial impact upon you personally, or upon your position with the TLPOA. As for your theory that a conflict would only exist as to matters involving the security department of the TLPOA, such is erroneous and contrary to the Ethics Law, which draws no such distinctions. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) set forth above. As for Section 3(f), the facts which you have submitted establish that there are instances where the TLPOA and Sandy Township engage in transactions involving the purchase /sale of road salt and other items. Such transactions would fall squarely within the Ethics Law's definition of "contract" as set forth above, and would be subject to the Section 3(f) restrictions where valued at $500 or more. We find that Advice of Counsel, No. 98 -532 reflects a straightforward application of the Ethics Law and this Commission's precedent. It is neither "extreme" nor contrary to a "common sense" reading of the Ethics Law. Finally, although we recognize that you disagree with the Advice of Counsel, we do not believe that it will have a chilling effect so as to discourage people from seeking or holding public office. Based upon all of the above, Advice of Counsel, No. 98 -532 is affirmed. 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. Behringer, 98 -006 August 7, 1998 Page 7 IV. CONCLUSION: A township supervisor is a public official subject to the provisions of the Ethics Law. A non - profit property owners association which employs the township supervisor is a "business with which he is associated" as defined in the Ethics Law. The township supervisor would have a conflict of interest where the use of the authority of his public office, or confidential information obtained by being in that position, would result in a private pecuniary benefit for his employer, the property owners association, regardless of whether the matter in question would affect him or his position, or would involve the particular department of his employer at which he works. In each instance of a conflict of interest, the township supervisor would be required to fully abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law. The restrictions of Section 3(f) of the Ethics Law would have to be observed as to contract(s) between the property owners association and the township where such contract(s) would be valued at $500 or more. Advice of Counsel, No. 98- 532 is affirmed. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, cYoalbxJ6 efuc.i Daneen E. Reese Chair