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HomeMy WebLinkAbout89-540 SavagePeter J. Savage, Esquire Savage & Killian P.O. Box 5039 83 South Franklin Street Wilkes - Barre, PA 18710 Dear Mr. Savage: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 16, 1989 89 -540 Re: Conflict of Interest, First Class Township Commissioners, Voting on Energy Recycling Facility, Trip to Facility This response to your letter of April 13, 1989, in which you requested advice from the Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon first class township commissioners as to voting on a recycling and energy recovery facility when they took a bus trip to the site at the facility's expense but thereafter made reimbursement for the cost of the bus trip and lunch. Facts: As solicitor for Hanover Township, you advise that the Hanover Township Board of Commissioners has requested you to seek an advisory opinion regarding the duties of three Township Commissioners. You have telephonically advised that the three Commissioners have authorized you to ask the question on their behalf. You note that a citizen's group in Hanover Township formed a Waste -to- Energy Committee to explore various alternatives to resolve problems associated with garbage disposal and collection in the Township. You indicate several firms were invited to make presentations to the Waste -to- Energy Committee and that the Township Commissioners were present and participated in these forums. After stating that the Waste -to- Energy Committee arranged for two buses to carry interested members of the Committee and community to a site operated by Wheelabrator, Inc. in Maryland, you advise that the three Commissioners went on the trip which was paid for by Wheelabrator, Inc. You state that some of the Commissioners knew prior to the trip of the Wheelabrator sponsorship but others only became aware of the sponsorship the day before its occurrence. After advising that Peter J. Savage, Esquire May 16, 1989 Page 2 the per capita cost for the transportation and lunch was $24.00, you state that all Township Commissioners who participated sent a check to Wheelabrator, Inc. for the cost associated with their involvement. You indicate that the visit to Wheelabrator, Inc. was of a general educational nature and that the Commissioners did not partake in any activities other than those open and attended by the rest of the people making the trip. You note that the Township Commissioners may vote on whether Hanover Township will become host community for Waste -to- Energy plant and, if so, they may desire to designate Wheelabrator, Inc. as a developer. You note that such a determination would require negotiations between the Township and Wheelabrator and that Wheelabrator would undertake the necessary feasibility studies for a plant in the Township. You conclude by requesting advice from the Commission as to whether voting by any of the Commissioners who participated in the Wheelabrator trip to designate Wheelabrator as the developer of a Recycling and Energy Recovery facility in Hanover Township would transgress the Ethics Act. Discussion: As First Class Township Commissioners, the individuals are public officials as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code S1.1. And such, their conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to them. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to o b t a i n financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Peter J. Savage, Esquire May 16, 1989 Page 3 Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official /employee must neither offer nor accept anything of value on the understanding or with the intention that the public officials /employees judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 65 P.S. S403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials /employees do not conflict with the public trust or create the appearance of Peter J. Savage, Esquire May 16, 1989 Page 4 a conflict with the public trust. In applying the above provisions of the Ethics Act to the instant matter, the issue is whether a conflict exists when these Township Commissioners accepted a gift of a bus transportation and lunch from a firm and subsequently would vote to designate that firm as developer, but only after they returned the sum of money which would be equivalent to the cost of the transportation and lunch. Generally, under the Ethics Act, there is no per se prohibition to receiving a gift but said gift must be reported on the Financial Interest Statement if $200 or more. 65 P.S. 5404. However, public officials /employees may be in a conflict of interest situation if they accept a gift and then have involvement with the donor of the gift in their capacity as public official /employee. See Polenchar, Advice 88 -628. In this case, the three Commissioners did receive a gift consisting the transportation and free lunch to the Wheelabrator Site. However, since the Commissioners have returned a sum of money which is stated to be equal in amount to the gift they received, the question now becomes whether they may proceed to vote to designate Wheelabrator as the developer. In DeLano, Opinion 88- 008, the issue before the Commission was whether a Second Class Township Supervisor could vote on a proposed land fill when the Supervisor was a member of the Citizen's group which was in litigation as to an existing incinerator on the site of the proposed land fill. Although the Commission found that the Supervisor was in conflict in that case, the Commission concluded that the Supervisor could vote if he removed himself from the conflict by withdrawing as a member of the Citizen' group. Therefore, it would seem that the three Township Commissioners in this case have removed themselves from the potential conflict by returning the amount of the gift; it is expressly assumed for purposes of this advice that they have completely returned the full value of the gift given to them by Wheelabrator. In addition, it is assumed that they have no financial interest in Wheelabrator, Inc. and have not supplied Wheelabrator with any confidential information. 65 P.S. 403(a). Based upon the foregoing facts and circumstances, the three Township Commissioners would not be precluded from voting to designate Wheelabrator as the developer of the Recycling and Energy Recovering Facility in Hanover Township. Lastly, 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 that the Ethics Act, has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As Hanover Township Commissioners, the three Peter J. Savage, Esquire May 16, 1989 Page 5 individuals are public officials subject to the provisions of the Ethics Act. Subject to the qualification and limitations noted above, under Section 3(a) and 3(d) of the Ethics Act, the three Township Commissioners would not be precluded from voting to designate a firm as developer of a Recycling and Energy Recovery Facility when they went on a bus trip and received a lunch at the expense of the firm but thereafter made a payment to the firm equal in value to the bus trip and lunch that they received. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. cerely, Vincent J. Dopko, General Counsel