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HomeMy WebLinkAbout92-538STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 t= TELEPHONE (717)-783 -1610 ADVICE OF'COUNSEL February'18, 1992 Mr.' James D. Scheffey Wrigley, Yergey, Daylor & Scheffey 1129 High Street Pottstown, PA 19464-0776 92 -538 A Re: Conflict, Public Official /Employee, Township Supervisor, Imiediate Family, Brother, Business with which Associated, Law Firm, Legal Representation, Clients,- Negotiations with Municipal Authority, Vote, Use of , Authority of Office,. Dear Mr. Scheffey: This responds to your letter of January 9, 1992, 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 supervisor with regard to matters involving prospective negotiations with a municipal authority regarding the extension of its municipal sewer lines into the township, where the supervisor's brother is -an attorney and represents the municipal authority. Facts: As Solicitor for the Board of Supervisors of Washington Township in Berks County, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of Mr. Warren H. Prince, a Member of the Board of Supervisors. You acknowledge your receipt of prior Advice of Counsel, No. 91 -603, dated December 6, 1991, which Advice was issued in response to your prior inquiry on behalf of Mr. Prince. You state that at the present time, Washington Township is, for the most part, unsewered. It is possible that within the next several years, the Township Supervisors will - approach the Berks -Mont Municipal Authority (BMMA) to discuss -the feasibility of BMMA- extending its - municipal sewer lines into Washington Township. Paul A. Prince, Esquire, the - brother %of Warren-Prince, represents BMMA. You note that as mentioned in prior letter of October 9, 1991 (which resulted in the issuance of Advice 91 - 603), Warren Prince, who is also an attorney, and his brother, Paul Prince, do not practice law together. Nonetheless, you Mr. James D. Scheffey February 18, 1992 Page 2 acknowledge that. Paul Prince would be considered to be a member of the "immediate family" of Warren Prince as set forth in the Ethics Law, Based upon the above, you seek an advisory as to whether Warren Prince would ,. be precluded from involvement in any discussions with representatives of BMMA in regard to the extension of municipal sewer into Washington Township. You specifically inquire as to whether Warren Prince would be precluded from entering into the aforementioned discussions because of his brothers representation of BMMA. You state that the factual situation which you are now submitting, to the Commission differs from that set forth in your prior letter of inquiry of October 9, 1991, where the Township was involved in litigation and the opposing party was represented by Mr. Prince's brother. Discussion: As a Township Supervisor for Washington Township in Berks County,- Pennsylvania, Mr. Warren H. Prince 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..: Section 2. Definitions. The following terms are in - _ _the Ethics = Law as follows: "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 exnployment 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 Mr. James D. Scheffey February 18, 1992 Page 3 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 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. "Immediate family." A parent, spouse, child, brother or sister. "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, 1 wner, employee or has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in . 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`.providos 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 Mr. James D. Scheffey February 18, 1992 Page 4 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 las 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 inade 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), then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Supplemental Advice 91- 523 -S. In applying the above provisions of the Ethics Law to your present inquiry, Section 3(a) of the Ethics Law prohibits a public - official /public employee from using the authority of public office /employment for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Warren Prince's brother, Paul Prince,- a member of his immediate family, and the law firm= which includes. Paul Prince is a business with which this immediate family member-is associated. Mr. James D. Scheffey February 18, 1992 Page 5 Warren H. Prince, as a Township Supervisor, would have a conflict of interest. in matters involving discussions with BMMA representatives with regard to extending BMMA's Municipal sewer lines into Washington Township where Mr. Prince's brother, Paul Prince, is legal counsel for BMA. It would be unrealistic to suppose that Paul .Prince would not be involved in providing legal Services to BMMA in this matter. To the contrary, BMMA would be expected to rely upon its attorney in discussions, negotiations, and any ultimate contracting-_ with Washington Township. It is noted that the facts which you have submitted make no affirmative representations that; the legal services of Paul Prince and /or his law firm would not be provided to BMMA in this matter. Given Paul Prince's involvement as legal counsel for BMMA in the prospective extension of municipal sewer lines into Washington Township, were Warren Prince to participate in such matters on behalf of the Township, such conduct could result in a private . pecuniary benefit for a member of his immediate family (brother), and /or for a business with which the immediate family member is associated ( firm) . In each instance a conflict of interest, Warren Prince would be required to abstain from any participation of any nature whatsoever, and he would also be required to fully satisfy the disclosure requirements of Section 3(j) set forth above. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, cede, 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 and /or the Rules of Conduct. Conclusion: As a Township Supervisor for Washington Township in, Berks County, Pennsylvania, Warren H. Prince, Esquire, is a public official subject to the . provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics. Law, Mr:. Warren H. Prince may not use the authority of his office or any confidential information redeived by holding public office for the private pecuniary benefit . of himself, a member. of his - immediate family, or a business with which he'or a member. of immediate family is associated. Mr. Prince's brother, Paul. Prince, is a member of Mr. Prince's "immediate The= law firm which includes Mr. Prince's brother is a business with which this immediate family member is associated. As a Township Supervisor, Mr. Warren M. Prince would have a conflict of interest as to., matters , involving the: extension of the...municipacl Mr. James D. Scheffey February 18, 1992 Page 6 sewer lines of the Berks -Mont Municipal .Authority (BMMA) into Washington Township, based upon Paul Prince's legal representation of BMMA. In each instance of a conflict of interest, Mr. Warren H. Prince must abstain from any participation of any nature whatsoever, and he must satisfy the disclosure requirements of Section 3(j) as set forth above. 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 requester 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 §2.12. c) Vincent J. Dopko Chief Counsel