HomeMy WebLinkAbout01-594 SchuckmanEarl W. Schuckman
3582 Fissels Church Road
Glen Rock, PA 17327
ADVICE OF COUNSEL
October 2, 2001
01 -594
Re: Conflict; Public Official /Employee; Chairman; Township; Supervisors; Verizon
Communications; Verizon Wireless; Business With Which Associated; Vote; Lease.
Dear Mr. Schuckman:
This responds to your letter of September 6, 2001, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a chairman of a
township board of supervisors as to participating in township action to approve a lease
between the township and Verizon Wireless when the supervisor is employed by Verizon
Communications.
Facts: You serve as the Chairman the Board of Township Supervisors of
Shrewsbury Township, York County ( "Township "). You state that you are employed by the
"wire side" of Verizon Communications, which provides local telephone service via wire.
In the process of designing a 22 -acre recreational facility, the Township learned that
a neighboring township leases space for a cell site on its recreational facility and uses the
rent to pay for the upkeep of the facility. Thereafter, several cell site providers who were
looking for space to locate a radio antenna for Township communications were contacted
and informally asked whether they would be interested in a site on Township property.
Verizon Wireless was the only provider to reply.
Given your employment with Verizon Communications, you ask whether you may
participate in the negotiations and vote to grant a lease to Verizon Wireless. You state that
due to the regulation of the Verizon Corporation, Verizon Communications and Verizon
Wireless are separate companies that provide a different service.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts which have not
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October 2, 2001
Page 2
been submitted. It is the burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As Chairman of the Board of Township Supervisors of Shrewsbury Township
( "Township "), you are a public official as that term is defined in the Ethics Act, and hence
you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
§1102. Definitions
"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. The term 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
"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.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to
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October 2, 2001
Page 3
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
§1103. Restricted activities
(j) Voting conflict. - -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 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(j) requires the public official /employee to
abstain and to publicly disclose the abstention and reasons for same, both orally and by
filing a written memorandum to that effect with the person recording the minutes or
supervisor.
In the event that the required abstention results in the inability of the governmental
body to take action because a majority is unattainable due to the abstention(s) from
conflict under the Ethics Act, then voting is permissible provided the disclosure
requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, pursuant to
Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using
the authority of public office /employment or confidential information received by holding
such a public position for the private pecuniary benefit of the public official /public employee
himself, any member of his immediate family, or a business with which he or a member of
his immediate family is associated.
Verizon Communications, by which you are employed, is a business with which you
are associated. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited
from using the authority of your office as a Township Supervisor or confidential information
for the private pecuniary benefit of yourself or Verizon Communications. In each instance
of a conflict of interest, you would be required to abstain and observe the disclosure
requirements of Section 1103(j) of the Ethics Act.
The Ethics Act would not prohibit you from participating in Township actions as to
Verizon Wireless, conditioned upon the assumptions that: (1) Verizon Communications
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October 2, 2001
Page 4
and Verizon Wireless are separate entities; and (2) you do not have a "financial interest" in
Verizon Wireless and are not a director, officer, or employee of that latter entity. See,
Confidential Opinion, No. 92 -003. Under such circumstances, your participation would not
be prohibited because Verizon Wireless would not be considered a business with which
you are associated.
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. Specifically not addressed herein is the applicability of the
Second Class Township Code.
Conclusion: As Chairman of the Board of Township Supervisors of Shrewsbury
Township, you are a public official subject to the provisions of the Public Official and
Employee Ethics Act (`Ethics Act "), 65 Pa.C.S. §1101 et seq. Verizon Communications,
by which you are employed, is a business with which you are associated. Pursuant to
Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your
office as a Township Supervisor or confidential information for the private pecuniary benefit
of yourself or Verizon Communications. In each instance of a conflict of interest, you
would be required to abstain and observe the disclosure requirements of Section 11030) of
the Ethics Act. The Ethics Act would not prohibit you from participating in Township
actions as to Verizon Wireless, conditioned upon the assumptions that: (1) Verizon
Communications and Verizon Wireless are separate entities; and (2) you do not have
"financial interest" in Verizon Wireless and are not a director, officer, or employee of that
latter entity. Under such circumstances, your participation would not be prohibited
because Verizon Wireless would not be considered a business with which you are
associated. Lastly, the propriety of the proposed conduct has only been addressed under
the Ethics Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement
proceeding initiated by the Commission, and evidence of good faith conduct in any other
civil or criminal proceeding, provided the requestor has disclosed truthfully all the material
facts and committed the acts complained of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason
to challenge same, you may appeal the Advice to the full Commission.
A personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code §13.20. The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
FAX transmission (717 -787 - 0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel