HomeMy WebLinkAbout490-R RiderMr. Charles C. Rider
125 Main Street
McSherrystown, PA 17344
Dear Mr. Rider:
Re: Order No. 490, File No. 85 -115 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
RECONSIDERATION ORDER OF THE COMMISSION
June 16, 1986
Order No. 490 -R
This refers to the request for Reconsideration presented on May 15, 1986,
with respect to the ahove - captioned Order issed on May 2, 1986, pursuant to 51
Pa. Code 2.38. The discretion of the State Ethics Commission to grant
reconsideration is properly invoked, pursuant to our regulations, 51 Pa. Code
2.3R(h) when:
(h) Any party may ask the Commission to reconsider an Order within 15
days of service of the Order. The person requesting reconsideration
should present a detailed explanation setting forth the reason why the
Order should he reconsidered. Reconsideration may he granted at the
discretion of the Commission only where any of the following occur:
(1) a material error of law has been made;
(2) a material error of fact has been made;
(3) new facts or evidence are provided which
would lead to reversal or modification of
the order and where these could not he or
were not discovered previously by the
exercise cf due diligence.
The Commission, having reviewed your request, must DENY your request
because none of these circumstances are present.
Specifically, a review of the information that you have suhmitted in
support of your request for reconsideration generally indicates that you agree
with most, if not all, of the findings of fact as set forth in our order. Of
major signifiganc_e is the fact that you admit that you represented your
private employer hefore horough officials at horough caucus meetings and work
sessions. In this respect, it is impossible to distinguish whether you were
acting as a representative of that corporation or as a borough official. The
fact that you acted in this simultaneous capacity was of major importance to
our findings in this matter. As we noted in our order, that in acting in the
Mr. Charles C. Rider
Page 2
June 16, 1986
manner that you did during these private sessions, you were clearly in a
conflicting position in that you were representing the private corporation
that was to do work for the borough while at the same time you were obligated
to act in the hest interest of the puhlic as a borough official. While you
submit that no engineering fees were received for the services provided in
this respect, it is clear that by participating in this manner in the private
work sessions of horough council you, without a doubt, maintained the inside
tract on presenting your private employer's position in relation to potential
horough work. It is exactly this type of influence and control that the
Ethics Act was intended to prevent. Additionally, on various occasions you
have noted that many of the actions that you took were required of you as a
member nr as chairman of borough council. Specifically, you indicate that the
selection of a sewage enforcement officer is required by and also that
you, as chairman, were required to make various motions. While the selection
of a sewage enforcement officer and the payment thereof by the borough may he
required by law and while motions must he made in order for those motions to
he considered by the borough, there is no obligation that you, when you are an
interested party, must make those motions or participate in said action. In
fact, the Ethics Act requires that you not participate in said matters. It is
difficult to perceive how any provision of law would imply that a public
official may participate in a matter wherein they have a personal interest.
In fact, existing case law is to the contrary and courts have been adamant in
upholding the principal that puhlic officials must not participate in matters
wherein they have an interest. See Genkinger v. New Castle, 368 Pa. 547, 84
A.2d 303, (1951); McCreary v. Major, 343 Pa. 555, 22 A.2d 686 (1941);
Commonwealth v. Raudenhush, 242 Pa. 86, 99 A. 55, (1915).
Finally, you assert that prior to voting on the issue of the stormwater
ordinance wherein the borough engineer would he required to perform work, you
advised that your requested an opinion from the borough solicitor as the
propriety of your vote. You were advised that no conflict of interest had
existed. While this may he so, good faith reliance upon the advice of a
municipal solicitor is not justification for participation in a matter wherein
a puhlic official has a personal interest. See McCutcheon v. State Ethics
Commission, 77 Pa. Comm. Ct. 59, 466 A.2d 283 (1982). You also note, in
relation to the above, that while you voted on the stormwater ordinance you
indicate that your employer was not named as engineer in that ordinance. This
does not negate the fact, however, that the ordinance specifically required
the borough engineer to do specific work and that the borough engineer at the
time of the passage of this ordinance was your employer. A review of the
above clearly indicates that no material error of law or fact has been made in
our original order. Additionally, the new facts that you have provided are
not of the nature that should lead to the modification of that original
order.
Mr. Charles C. Rider
Page 3
June 16, 1986
In light of the foregoing, the State Ethics Commission concludes that
your request for reconsideration must he DENIED.
Our order in this matter and decision denying reconsideration are final
and shall he made available as puhlic documents on the fifth husiness day
following the date of this Order.
By the Commission,
R3
G. Sieber Pancoast
Chairman