The URL can be used to link to this page

Home My WebLink About140 Davailusare: Dear Mr. Davailus: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Mr. Edward Davailus, Member Covington Township Planning Commission RD #1 Gouldsboro, PA 18424 July 22, 1982 ORDER OF COMMISSION No. 140 #81- 85- C(3 -3) The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation into these allegations and will take no action as to any viola- tion of Act 170. The individual allegations and findings on which our conclusion is based I. Allegations: 1. That, as a member of the Covington Township Planning Commission, you recommended or voted for approval of a development to be established by Eagle Lake Corporation and that you have and do perform excavating work for said Corporation and other companies /corporations owned by Eagle Lake Corporation, namely Sun Construction Company and Big Bass Lake. 2. That, as a member of said planning commission, you supported all decisions on subdivision requests and zoning /approvals for Eagle Lake Corpo- ration and are now performing work for said Corporation. II. Finding 1. You are a member of the Covington Township Planning Commission and have been one for three years. This is an appointive position and you receive no compensation for it. 2. You voted for approval of a development to be established by Eagle Lake Corporation, 3. You are an excavation contractor and have done work for Big Bass Lake, a company owned by Eagle Lake Corporation; this is only one of many different developers in your area for whom we have worked. 4. You did work for both Eagle Lake Corporation and Big Bass Lake for years before becoming a planning commission member. Mr. Edward Davailus July 22, 1982 Page 2 5. You state that your vote for the approval of the Eagle Lake develop- ment /subdivision plan had nothing to do with your contract with either Eagle Lake Corp. or Big Bass Lake. All work performed for these companies is obtained through a bidding procedure. You have lost business in some cases to both companies and to other development companies because your bids were not the low Yid. 6. The development in question had to be approved by the county planning commission prior to approval by the township planning commission and required subsequent approval by the township supervisors. 7. The township planning commissioners only responsibility is to see that the environmental and township specifications are being met by the developer. You have no responsibility for zoning decisions. III. Discussion: The initial question to be answered in your case is whether unpaid members of a planning commission are subject to the Ethics Act so that their conduct would be subject to the requirements of the Ethics Act. To answer this question we reviewed the definition of "public official" in the Act which states: "Public official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 402 While appointed, non - compensated persons might be said to be clearly excluded from coverage, this definition must also be reviewed in light of the recent ruling in Snider v. Thornburgh, Pa. , 436 A.2d 593 (198L). In this ruling, issued September 29, 19$x, the Supreme Court appeared to alter the definition of "public official" by removing the exclusion relating to appointed, non - compensated persons. While this case related to school board directors, it may affect the scope of the entire definition of "public official 11 by including non - compensated appointed persons previously excluded from the Ethics Act's definition of that term. The State Ethics Commission is currently assessing the impact of this ruling and if appointed, non - compensated persons other than school directors are to be affected by this decision, regulations will be promulgated to implement this portion of the Snider ruling. Mr. Edward Davailus July 22, 1982 Page 3 In any event, even assuming that persons such as planning commission members, previously excluded from the "public official" definition as it stood prior to the September 2.9, 1981 Snider ruling will eventually, by regulations, be held within the purview of this definition, we are unwilling to apply this Snider ruling_ retroactively to apply to and to affect your conduct during the pe�rio3 when,you were reviewing the Eagle Lake plans for approval. During this period you/were not covered by the Ethics Act and we will not censure your conduct at this point when such action /conduct was undertaken at a point in time when your inclusion within the definition of "public official" was not clear. We feel free to point out, however, that Section 1 of the Ethics Act declares that "... the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust." Public officials and employees can avoid actual or apparent conflicts of interest with Act 170 by either avoiding business relationships with those they regulate, insuring that those business relation- ships are publicly known, and abstaining from participation in any matters which would affect the parties in that business relationship. We suggest that if similar circumstances arrive in the future, you make a public record of your relationship with the people submitting the subdivision plans. IV. Conclusion: The State Ethics Commission will take no further action in this matter in light of the serious question of your inclusion within the coverage of the Ethics Act at the time the conduct /action in question occurred. This conclu- sion is not meant to condone or condemn your conduct. Should you clearly be within the definition of "public official" as established by the Ethics Act or existing or future regulations of the State Ethics Commission and should you face a similar situation in the future, you should solicit the advice of the State Ethics Commission in relation to conforming your conduct to the require- ments of the Ethics Act and be generally guided by our discussion above. Our files in this case will remain confidential in accordance with -- Section 3(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will become available as a public document within 15 days unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent fctual findings. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge tfiTsFder, may violate this confidentiality by releasing, discussing or ciculating this Order. Mr. Edward Davailus July 22, 1982 Page 4 Any person who violates the confidentiality of a Commission proceeding is guilty to a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). Sincerely, PJS /rdp (:)1,i4Y Paul J Smith Chairman