HomeMy WebLinkAbout01-589 SalvatoreBruce E. Dice, Esquire
Bruce E. Dice & Associates, P.C.
P.O. Box 589
Murrysville, PA 15668 -0589
ADVICE OF COUNSEL
August 31, 2001
01 -589
Re: Conflict; Public Official /Employee; Township Supervisor; Owner; Investor; Septic
Business; Timber /Logging Business; Business With Which Associated; Road
Bond; Sanitary Sewer Issues; Sewage Authority; De Minimis Exception;
Class /Subclass Exception.
Dear Mr. Dice:
This responds to your submissions of July 31, 2001, and August 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 two township
supervisors, who, in their private capacities are, respectively, (1) a Broker and Buyer in
the logging /lumber business and the owner of a septic system installation /repair
business, and (2) a prospective investor and principal in interest(s) which would involve a
sanitary sewer septic business and the excavation and hauling of overweight equipment
and materials over township roads, with regard to participating in their official capacities
as township supervisors in matters pertaining to logging /timbering; road bonds and
overweight vehicles; and sanitary sewer issues, including: expenditures of monies;
creation of liabilities; the interviewing and appointment of a sewage enforcement officer
and/or township engineer; the issuance of sewer permits; approval and disapproval of
various Developer Agreements affecting sanitary sewerage construction, installation,
operation and maintenance; and the formation of a Sanitary Authority and appointment of
members to such Authority's board.
Facts: You are the Solicitor for Salem Township ( "Township ") in Westmoreland
may, Pennsylvania. The Township Board of Supervisors is a three - member board
consisting of the following members: Carmella Salvatore ( "Salvatore "), Anders Johnson
( "Johnson "), and Edward Gieselman ( "Gieselman ").
Procedurally, on July 17, 2001, Salvatore, Gieselman and Johnson voted
unanimously to authorize you to submit an inquiry to the State Ethics Commission as to
the facts and issues set forth in your letter dated July 31, 2001. Such facts and issues
Dice 01 -589
August 31, 2001
Page 2
pertained exclusively to the prospective conduct of Johnson and Gieselman. Your
request as authorized by the three supervisors was accepted and docketed at the State
Ethics Commission for issuance of an advice.
Subsequently, you submitted a faxed transmission dated August 6, 2001. The
faxed transmission consisted of a cover letter from you with an attached letter from
Johnson. You asked that Johnson's letter be used to supplement your request.
Substantively, Johnson's letter not only submitted additional facts relative to his own
conduct, but it also set forth facts and posed questions as to Gieselman and Salvatore
which were not included in your initial letter. There is no indication of any authorization
by Gieselman or Salvatore as to the additional facts and inquiries submitted by Johnson
as to their conduct.
While Johnson has standing under the Ethics Act to submit facts and questions as
to his own conduct, he does not have standing to proffer additional facts and inquiries as
to Gieselman or Salvatore without their specific authorization. 65 Pa.C.S. § 1107(11).
Accordingly, such additional unauthorized facts and questions shall not be set forth or
considered in this Advice.
It is parenthetically noted that Johnson is not the only one of the three supervisors
who has attempted to obtain an advisory as to a third party without authorization.
According to Commission records, on November 20, 2000, Gieselman telephoned the
Commission to inquire as to the conduct of another supervisor who installs septic
systems in the township. After being advised that he had no standing, Gieselman
indicated that he might write for a ruling as to his own business dealings. Gieselman was
cautioned that he could not claim that he was engaging in the conduct so as to get a de
facto advice as to the other supervisor. Gieselman responded that he was entitled to get
an advisory as to his own conduct.
Subsequently, the Commission received an inquiry from you, dated July 5, 2001,
in which you stated that Gieselman had requested that you write "on behalf of the
majority of the Board." In that letter, the only supervisor whose conduct was in question
was Johnson.
After being advised that you had not established standing to inquire as to Johnson,
you submitted another letter dated July 31, 2001, indicating that Johnson had, together
with the other supervisors, voted to authorize your inquiry, and posing questions as to
both Johnson and Gieselman. The facts as set forth in your letter dated July 31, 2001,
may be fairly summarized as follows.
You state that Johnson is in the business of installing and repairing on lot septic
systems within the Township and adjoining townships. He is also in the logging /lumber
business, both as a Broker and Buyer, and hauls logs and other overweight materials and
equipment over Township roads at excess weight limits, such that the posting of bonds is
required.
You state that Gieselman has informed you that he is considering (if it would not
present a conflict of interest) investing and becoming a principal in interest(s) which
would involve a sanitary sewer septic business and the excavation and hauling of
overweight equipment and materials over township roads.
You ask whether Johnson or Gieselman (should the latter invest as noted above)
may, pursuant to the Ethics Act, participate in their official capacities as township
supervisors in discussions or votes in matters pertaining to logging /timbering; road bonds
and overweight vehicles; and sanitary sewer issues, including: expenditures of monies;
creation of liabilities; the interviewing and appointment of a sewage enforcement officer
and /or township engineer; the issuance of sewer permits; approval and disapproval of
various Developer Agreements affecting sanitary sewerage construction, installation,
Dice 01 -589
August 31, 2001
Page 3
operation and maintenance; and the formation of a Sanitary Authority and appointment of
members to such Authority's board. You note that the Authority will be charged with the
installation, construction, maintenance and regulation of all of the Public Sanitary Sewers
in the Township.
Finally, it is noted that the additional facts submitted by Johnson as to his own
conduct are that he is not in the business of installing or constructing sanitary sewer
lines, and that his septic business is limited. Johnson states that within the last 5 years,
he has installed one small flow treatment facility in the Township.
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
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. § 107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As Supervisors for Salem Township (the "Township "), Edward Gieselman
( "Gieselman ") and Anders Johnson ( "Johnson') are public officials subject to the
provisions of the Ethics 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 pertaining to conflicts of interest 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.
Dice 01 -589
August 31, 2001
Page 4
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
65 Pa.C.S. §1102.
Section 11030) 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).
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.
In each instance of a conflict, Section 1103(j) requires the public official /employee
to abstain fully and to publicly disclose the abstention and reasons for same, both orally
Dice 01 -589
August 31, 2001
Page 5
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 your inquiry, you are advised
that in this instance, for the reasons set forth below, it cannot be determined whether
Johnson or Gieselman would have conflicts of interest under the Ethics Act as to their
proposed official involvement in matters pertaining to logging /timbering; road bonds and
overweight vehicles; and sanitary sewer issues, including: expenditures of monies;
creation of liabilities; the interviewing and appointment of a sewage enforcement officer
and/or township engineer; the issuance of sewer permits; approval and disapproval of
various Developer Agreements affecting sanitary sewerage construction, installation,
operation and maintenance; and the formation of a Sanitary Authority and appointment of
members to such Authority's board.
First, you state that Johnson is in the business of installing and repairing on lot
septic systems within the Township and adjoining townships, yet Johnson states that he
is not in the business of installing or constructing sanitary sewer lines and that his septic
business is limited. Specifically, within the last 5 years, he has installed one small flow
treatment facility in the Township. Based upon these facts, it cannot be determined
whether matters before the Township involving sanitary sewer issues would financially
impact Johnson and /or his business, or whether any such impact would be de minimis so
as to require application of the "de minimis" exception to the definition of "conflict" or
"conflict of interest."
Second, it is not clear whether Gieselman's prospective investment /business
activities would involve "businesses with which he is associated," for purposes of
applying the Ethics Act.
Finally, the submitted facts as to Gieselman investing and becoming a principal in
business interest(s) similar to Johnson's suggest the potential for applicability of the
class /subclass exception to the definition of 'conflict" or "conflict of interest" as to all of
the questions which you have posed.
As noted above, 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). That burden has not
been met in this instance. Accordingly, this Advice is necessarily limited to providing the
above general guidance as to the restrictions of the Ethics Act.
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 Supervisors for Salem Township (the "Township "), Edward
Gieselman ( `Gieselman ") and Anders Johnson ( "Johnson ") are public officials subject to
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. In
this instance, based upon insufficient facts, it cannot be determined whether Johnson's
business interests as a Broker and Buyer in the logging /lumber business and the owner
of a septic system installation /repair business, or Gieselman's prospective activities as an
investor and principal in interest(s) which would involve a sanitary sewer septic business
and the excavation and hauling of overweight equipment and materials over township
roads, would result in these Supervisors having conflicts of interest under the Ethics Act
Dice 01 -589
August 31, 2001
Page 6
as to matters pertaining to togging /timbering; road bonds and overweight vehicles; and
sanitary sewer issues, including: expenditures of monies; creation of liabilities; the
interviewing and appointment of a sewage enforcement officer and/or township engineer;
the issuance of sewer permits; approval and disapproval of various Developer
Agreements affecting sanitary sewerage construction, installation, operation and
maintenance; and the formation of a Sanitary Authority and appointment of members to
such Authority's board. Accordingly, this Advice is necessarily limited to providing the
above general guidance as to the restrictions of the Ethics Act.
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 §13.2(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.
Sincerely,
Vincent J. Dopko
Chief Counsel