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HomeMy WebLinkAbout98-011 McGrathJames McGrath State Ethics Commission 309 Finance Building PO Box 11470 Harrisburg, PA 17108 -1470 Dear Mr. McGrath: OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown DATE DECIDED: 10/9/98 DATE MAILED: 10/20/98 98 -011 Re: Public Employee; State Ethics Commission; Influence Decision by Governmental Body; Special Investigator; Township; Real Estate; Private Residence; Adjoining Property; Open Space; Park; Walking Trails; Private Rights. This Opinion is issued in response to your advisory request of October 2, 1998. I. ISSUE: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Special Investigator who is employed by the State Ethics Commission, with regard to acting in his private capacity to directly or indirectly attempt to influence the government of the township in which he resides in matters affecting his own home and family. II. FACTUAL BASIS FOR DETERMINATION: You have served as a Special Investigator for the State Ethics Commission since February, 1988. You request an advisory opinion from the State Ethics Commission as to any restrictions that the Ethics Law would impose upon you if, in your private capacity, you would attempt to influence the government of the Township wherein you reside in matters affecting your own home and family. You state that the Township owns a parcel of land which adjoins the rear of the property where you and your family reside. This parcel of land consists of a small wooded area with a creek running through it. The parcel was turned over to the Township by the developer of your subdivision to be maintained as open space. The creek is used for storm water run -off, and the area surrounding the creek is considered wetland. At a September 20, 1998 meeting, at which you were present, you and approximately 100 residents of the development where you reside were informed by Township Park and Recreation employees that this particular parcel of land and similarly situated parcels of land adjoining other residents' properties have been designated as Township park land. It was further stated that the Township is considering placing walking trails throughout this park land. It is your belief that the placement of walking trails this close to your property will have a detrimental effect on the value of your home and will affect the safety and well- being of your family. You believe that you and the other residents who are opposed to the walking trails will need to voice your opposition either verbally or by means of a signed petition in order to influence the decision of the Township Supervisors in the matter. You state that you would like to participate in this effort by publicly speaking out or by signing and gathering signatures on a petition asking the Township Board of Supervisors to reject the plan to place walking trails throughout the park land. You assure this Commission that any action taken on your part would be as a private citizen and not as an employee of the State Ethics Commission. You note that approximately one year ago, in your capacity as a Special Investigator for this Commission, you performed duties in a preliminary inquiry of a complaint against one member of the Township Board of Supervisors. The matter was closed at the preliminary inquiry stage. However, in the course of performing your duties, you were required to interview a number of Township officials. At the time of the preliminary inquiry, you informed the various parties that you reside in the Township, in order to eliminate any future claims that you were aligned with either side. You state that you do not know whether the Township officials will recognize you by name or appearance should you speak out on the walking trail issue. Based upon all of the above, you ask for an advisory opinion concerning your responsibilities under the Ethics Law. By letter dated October 5, 1998, you were notified of the date, time, and location of the public meeting at which your request for an advisory Opinion was to be considered. At the public meeting on October 9, 1998, you appeared and offered commentary, which may be fairly summarized as follows. After providing a more detailed explanation of your letter of submission, you state that the proposal to designate the adjoining property as a park is in the preliminary stage. The Township Board is seeking input on the plan. You want to provide such input by making an oral presentation to the Board or by signing a petition. You believe that the property should remain as open space, as originally intended, rather than for some other use. You are concerned because the creation of a park with walking trails could create noise and a loss of privacy or provide a location and opportunity for illegal activities. In addition, certain residents have had tax issues which required discussions with the tax collector. If you ever have a tax matter, you would want to communicate with the tax collector in an attempt to resolve the issue. You want to be able to address issues that will affect you and your family, but you have a concern that any action you might take would contravene Section 6(d)(4) of the Ethics Law. III. DISCUSSION: As a Special Investigator for the State Ethics Commission, you are a "public employee" as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence you are subject to the provisions of the Ethics Law. In addition to being subject to the restrictions and requirements that are imposed upon all "public employees," you are subject to the following restrictions that apply to Members and employees of this Commission: Section 6. State Ethics Commission (d) No individual, while a member or employee of the commission, shall: (1) hold or campaign for any other public office; (2) hold office in any political party or political committee; (3) actively participate in or contribute to any political campaign; (4) directly or indirectly attempt to influence any decision by a governmental body, other than a court of law or as a representative of the commission on a matter within the jurisdiction of the commission; or (5) be employed by the Commonwealth or a political subdivision in any other capacity, whether or not for compensation. 65 P.S. §406(d) (Emphasis added). The question that is presented by your inquiry is whether Section 6(d)(4) of the Ethics Law would preclude you from taking action in your private capacity to directly or indirectly attempt to influence the government of the Township in which you reside in matters affecting your own home and family. There is no judicial precedent interpreting Section 6(d)(4) of the Ethics Law. This Commission has reviewed Section 6(d)(4) on one other occasion, in Conner, Opinion No. 85 -026, which involved the business interests of a former Member and Chairman of this Commission. In Conner, supra, the then Chairman of this Commission had interests in various businesses, which businesses had existing contracts and /or were expected to enter into future contracts with the Commonwealth or political subdivisions. The Commission considered numerous issues, including the possible applicability of Section 6(d)(4). The Commission stated that the key to its analysis in that instance depended upon the interpretation of the word "influence," and whether the negotiation of the contracts in question was an attempt to influence such governmental bodies. The Commission held that where the Chairman had not been and would not be personally negotiating contracts with the governmental bodies, had made no personal contacts, and had not otherwise participated in such matters, and where his future involvement would similarly be limited to dealing with non - governmental people /entities and signing contracts which had already been negotiated by others, the Chairman would not be directly or indirectly attempting to influence any governmental body. In dicta, the Commission remarked upon a possible interpretation of the intent of this provision: The apparent intent ... was to restrict members and employees of the Commission from representing private interests before other governmental bodies and personally attempting to influence those governmental bodies in relation to such interests. This type of representation would, for example, include advocating before such governmental bodies. This construction, of course, results in a limitation of certain private rights and interests of Commission members and employees. This rationale, however, is in accord with one of the stated presumptions in determining legislative intent, i.e., that the General Assembly intends to favor the public interest as against any private interest. Our analysis of this provision of law, however, leads us to conclude that the above restriction would not preventa member or employee of the Commission from making appropriate applications to or seeking the services of other governmental bodies. For example, it cannot be presumed that if a member of the Commission owned a business that required the issuance of a license, that the law would absolutely prohibit that business from making application therefor and from having his interest represented before the issuing agency if necessary. Such a Commission member, however, would be limited in the role that they [sic] personally may play in relation thereto. Similarly, we do not believe that this provision of law was intended to prohibit a business owned by a Commission member from negotiating and executing contracts with other governmental bodies. Id. at 5, 6 (Some emphasis added). The Commission further advised Chairman Conner that, pursuant to Section 3(d) of Act 170 of 1978, involving "other areas of possible conflict," he should abstain in his official capacity with this Commission as to officials or employees of the governmental bodies involved in the award of contracts to businesses with which he was associated. We would note that Section 3(d) of Act 170 of 1978 has no counterpart in Act 9 of 1989. This Commission's above analysis in Conner as to the intent of Section 6(d)(4) is merely dicta since Conner was decided based upon the meaning of the word "influence," not based upon the legislative intent of this provision. As dicta, the Conner analysis of legislative intent is not binding upon this Commission in deciding your request. However, we find it significant that even in Conner, where commercial interests were involved as opposed to personal safety and property issues, the Opinion stressed the fact that the acceptance of employment with this Commission does not strip the individual of certain fundamental rights to which he is entitled as a private citizen. In contrast to former Chairman Conner, there is no question that you seek to act personally to influence the government of your Township. Therefore, determining the legislative intent is key to your inquiry. If Section 6(d)(4) would be interpreted literally, it could preclude you from protecting your private rights before the Township. Even under a Conner interpretation, you could, at the very least, be forced to hire an attorney to protect your private rights. Either of these results would not be what was intended by the Legislature when it enacted this provision. In this case, under the facts which you have submitted, it is certainly clear that Section 6(d)(4) would not preclude you from acting in your private capacity to either directly or indirectly attempt to influence the government of the Township wherein you reside in matters affecting your own home and family. This Section of the Ethics Law was never intended to deprive a Commission Member or employee of the fundamental right to protect himself, his family, or his home in matters before those who govern him. Any interpretation to the contrary would be absurd and unreasonable and would lead to other absurd and unreasonable results. For example, if this Commission were to hold that you could not, in your capacity as a private citizen, come before the government of the Township wherein you reside on matters affecting your own home and family, such a holding would also necessarily preclude a Commission Member /employee from: (1) defending himself in actions initiated against him by a governmental body; or (2) even speaking with school administrators or officials in his own school district in matters involving his own child. Indeed, taken to its illogical extreme, this sort of "reasoning" would preclude you from advocating your position on this very issue which you have presented before this Commission. The same provision of the Statutory Construction Act of 1972 which provides that the General Assembly intends to favor the public interest as against any private interest also provides that in ascertaining the legislative intent, it may be presumed that the General Assembly does not intend a result that is absurd or unreasonable. 1 Pa.C.S. §1922(1). In weighing these considerations as to your inquiry, reason prevails. We hold that Section 6(d)(4) would not preclude you from acting in your private capacity to directly or indirectly attempt to influence the government of the Township wherein you reside in matters affecting your own home and family, because any contrary interpretation would be absurd and unreasonable. Thus, you may express your concerns before the Township Board or sign a circulated petition as to the plan to convert the open space to a park with walking trails. You may communicate with the tax collector should you have a tax issue. However, you are cautioned that Section 6(d)(4) of the Ethics Law only allows attempts to influence a governmental body on matters affecting your home and family. Section 6(d)(4) would not allow you, for example, to appear before the Township or tax collector as the representative of other residents. As for any future matters involving the Township that may come before this Commission, in the absence of an actual conflict or some other basis for restriction under the Ethics Law, you would not be precluded from participating in such matters in your capacity as a Special Investigator for the State Ethics Commission. There is no longer any basis under the Ethics Law for finding an appearance of conflict or "other area of possible conflict," as was found in Conner, supra. 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. IV. CONCLUSION: A Special Investigator for the State Ethics Commission is a "public employee" as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law ") and is subject to the provisions of the Ethics Law. Section 6(d)(4) would not preclude the Special Investigator from acting in his private capacity to directly or indirectly attempt to influence the government of the Township wherein he resides in matters affecting his own home and family, because any contrary interpretation would be absurd and unreasonable. In the absence of an actual conflict or some other basis for restriction under the Ethics Law, the Special Investigator would not be precluded from participating in his capacity as a Special Investigator for the State Ethics Commission in future matters before this Commission involving the Township. 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 must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair