HomeMy WebLinkAbout97-608 FrankoE. David Christine, Jr., Esquire
Christine & Christine
47 South Court land Street
East Stroudsburg, PA 18301
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 25, 1997
97 -608
Re: Conflict, Public Official /Employee, Township, Supervisor, Consulting Engineer,
Employee, Sewer Project, Business with which Associated.
Dear Mr. Christine:
This responds to your letter of August 28, 1997 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
prohibition or restrictions upon a Township Supervisor who is employed in a private
capacity by the Township Consulting Engineer as to his participation in matters relating
to a sewer project with which the consulting engineer is actively involved.
Facts: As the Solicitor for the Tobyhanna Township Board of Supervisors, you
have been authorized by Township Supervisor Lawrence P. Franko (Franko) to request
an advisory from the State Ethics Commission on his behalf.
As of June 23, 1997, Franko became employed by Michael J. Pasonick, Jr., Inc.
(Pasonick). Pasonick was retained since before Franko was elected to the Board of
Supervisors to act as the engineers for the construction of the Blakeslee area sewer
project. The sewer project is now under construction and is funded and operated by
the Township. Pasonick is still under contract with the Township and is actively
involved in the sewer construction as project engineers. You request an advisory from
this Commission as to any prohibitions or restrictions under the Ethics Law regarding
Franko's future continued employment with Pasonick.
You indicate that you obtained an informal opinion from a State Ethics
Commission staff member which corresponded with your interpretation of Section 403
of the Ethics Law, specifically that Franko's continued employment was permissible
so long as he abstained on any matter involving the engineering firm and made public
disclosures regarding his abstention.
Christine /Franko, 97 -608
September 25, 1997
Page 2
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the
Ethics Law, 65 P.S. § §407(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
been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As a Supervisor for Tobyhanna Township, Franko is a public official as that term
is defined under the Ethics Law, and hence he is subject to the provisions of that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public employee shall
engage in conduct that constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. 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. "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.
"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.
In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement of the public
official /employee would be influenced thereby. Reference is made to these provisions
of the law not to imply that there has been or will be any transgression thereof but
merely to provide a complete response to the question presented.
Christine /Frankn, 97 -608
September 25, 1997
Page 3
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
(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.
In each instance of a conflict, Section 3(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 Law, then voting is permissible provided
the disclosure requirements noted above are followed. See, Wlakar, Advice 91- 523 -S.
In applying the provisions of Section 3(a) of Act 9 of 1989, the Ethics Law does
not prohibit private employment of Franko. 65 P.S. §401(b). However, whenever
such private business interests conflict with the public interest, the public interest is
paramount. Crisci, Opinion 89 -013. In such instances, where matters involving
Pasonick, a business with which Franko is associated as that term is defined under the
Ethics Law, come before the Board of Supervisors, Franko would have a conflict and
must observe the written and oral disclosure requirement of Section 3(j) noted above.
Section 3(f) of Act 9 of 1989, which imposes certain restrictions as to
contracting between a business with which a public official is associated and his
governmental body, is not discussed based upon the factual representation that the
contracting occurred in this case before Franko became a public official.
Christine /Franko, 97 -608
September 25, 1997
Page 4
Finally, the statement that "an informal non - binding opinion from one of your
staff members . . ." was obtained is incorrect. Staff of this Commission do not give
advisory opinions over the telephone, informal or otherwise.
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. Specifically not addressed herein is the
applicability of the respective municipal code.
Conclusion: As a Supervisor for Tobyhanna Township, Franko is a public official
subject to the provisions of the Ethics Law. Although Section 3(a) of Act 9 of 1989
does not prohibit a Township Supervisor from being privately employed by an
engineering firm which obtained a contract with the Township prior to the Supervisor's
service on the Board, the Supervisor would have a conflict and could not participate
as to matters of the engineering firm which would come before the Board and must
observe the disclosure requirement of Section 3(j) of Act 9 of 1989. Lastly, the
propriety of the proposed conduct has only been addressed under the Ethics Law.
Pursuant to Section 7(11), this 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, providing 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 §13.2(h). 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.
erely,
ncent J. Dopko
Chief Counsel