Loading...
HomeMy WebLinkAbout94-548 ErtelAllen E. Ertel, Esquire Third Floor, Suite 301 30 West Third Street Williamsport, PA 17701 -6513 Dear Mr. Ertel: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108.1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 12, 1994 94 -548 Re: Conflict, Public Official /Employee, Township Solicitor, Use of Confidential Information, Owner of Property Within Township, Development of Property, Sewer Expansion, Fee Charged by Township, Negotiations. This responds to your letter of March 17, 1994 in 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 Solicitor from serving as Township Solicitor for a sewer expansion project on Township land including land owned by the Solicitor. Facts: You are Solicitor for Muncy Creek Township Board of Supervisors. A company in which you own a part interest has purchased property in Muncy Creek Township (Township). This property falls within the proposed sewer expansion of the Township. You had no participation as to how the sewer system would expand, nor did you participate in the development of the sewage plant or module for Muncy Creek Township. The Township is going to ask for an advance payment from the potential lands which may be developed in the Township and the property of which you are a part owner is one of the properties from which the Township will be asking an advance payment. Since you are the Solicitor for the Township, it raises the issue of a conflict of interest. You have told the Township that you do not anticipate being involved in any negotiations between the land owners and the Township. In fact, there probably will be no negotiations. The Township simply will establish the amount of the advance fee to provide money to build the sewer. Ertel, Allen E., Esquire, 94 -548 'Y` April 12, 1994 Page 2 • It is your intention to refrain giving any advice with regard to the sewer which connects'to any part"- of -the property of which you are part owner. The question arises as to whether this abstention is sufficient to avoid a conflict of interest and to allow you to participate as a Solicitor for the Township in regard to the sewer expansion ,pro j.ect. The sewer will be expanding in many other areas, all of which will be financing the project. The project will not affect your property more so than it will any other property in the Township. Based upon the above, you request an advisory from the State Ethics Commission as to whether there is any need for you to disqualify yourself further than disqualifying ,yourself from any negotiations or contacts between the present ownership of your property and the Township. You state that you believe it is sufficient under the Canons of Ethics, but you would -like to have ,a ruling from this Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts As Solicitor for Muncy.Creek Township, you are a public employee as that term -is- defined under the Ethics Law, and hence you are 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 Ertel, Allen E., Esquire, 94 -548 April 12, 1994 Page 3 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 at 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. 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. 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 Ertel, Allen E., Esquire, 94 -548 April 12, 1994 Page 4 `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. If a conflict exists, 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 in that event ,pa- rticipation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. It is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public official from using the authority of office public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated In applying the above principles to the facts which you have submitted', the current sewer expansion project within the Township would notpreclude - you from serving as Township Solicitor. It is clear, however, that as ,a public employee, you would have a conflict of interest in matters pertaining to the expansion on your property. The above response is limited to the question posed and is based upon the factual representations that you had no participation as to the sewer expansion and that your company property will not be affected more than any other property in the Township.' ownship . ' Ertel, Allen E., Esquire, 94 -548 April 12, 1994 Page 5 If you, as , Solicitor, must participate in the expansion project on your property ; .whereby you, a member of your immediate family, or a business with which you or a member of your immediate family are associated would receive a private pecuniary benefit, you would have a conflict of interest.. In each instance of a conflict of interest, you would .• be required to fully abstain from participation in the capacity as a public official, satisfying the disclosure requirements of Section 3(j) as set fbtth above by publicly announcing the nature of the conflict at well at tiling ra written memorandum regarding same with the person recoriin'g the minutes. In this regard it is noted that the term "ute of authority of office" encompasses more -than the mere voting on an issue before you, and encompasses all of the .tasks needed to perform the functions of a given. position. See, Juliante, Order` No. 809. 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 Second Class Township Code or New Rules of Professional Conduct. Conclusion: As Solicitor for Muncy Creek Township, you are a public employee subject to the provisions of the Ethics LaW. Section 3(a) of the Ethics Law would not preclude you from servihsl as Township Solicitor ,for the sewer expansion project subject t� the restrictions and qualifications noted above. In the event that any matter regarding the expansion of the sewer on to your property comes before you, then you could not participate and the disd .osare requirements of Section 3(j) must be satisfied. Lastlyf the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(114, this Advice is a complete detente 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 AdVide or if you have an reason to challenge same, you may appeal the Advice to the ful Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Ertel, Allen E., Esquire, 94"5411 ° April 12, 1994 Page 6 Any . suet appeal must be in writing and must be actually received at the Commission within fifteen (15) 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). Si cerely, ncen L J . Dopko Chief Counsel.