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HomeMy WebLinkAbout92-554Mr. Glenn Cockefham -: 209 Conestoga Road Frazer, 'Pa 19355 Dear Mr. Cockerham: STATE ETHICS COIVIMIS'SION 309 FINANCE Bt71LDINO P.O. BOX 11470 HARRISBUJRG, PA 1 71 08 -1 470 TELEPHONE (717)783 -1610 ADVICE OF COUNSEL March 4, 1992= 92 -554 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Vote, Proposed Sewer Extension, Business with which Associated, Family Business Involving Sewage Services, Sewer Line Construction by Supervisor. This responds to your letter of February 3, 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 a proposed sewer extension, where the supervisor is qualified and registered to perform services including sewer line construction, and a family business with which the supervisor is associated services septic tanks, cesspools, and on -site sewage systems. Facts: As a Supervisor in East Whiteland Township you seek the advice of the State Ethics Commission as to whether you would have a conflict of interest in matters relating to the possible cost and construction of a proposed sewer extension on three streets of a forty - year -old development. You initially note concerns as to this project including liability to the Township and the cost to the residents, including long -time homeowners with limited incomes. You state that under Section 1501.1 of the Second Class Township Code, all costs must be paid in full upon completion of Sewer line construction. You also state that additional costs to the residents would be paid to contractors to hook up homes to lateral extensions at the curb, plus plumbing fees for any inside improvements. The proposed construction could involve contractor bids on jobs to be received by a ituinicipal authority and /or possible Construction by Township equipment and employees. Mr. Glenn Cockerham March 4, 1992 Page 2 Having noted the above, you state that your question pertains to a family business owned by your father and managed by you. It appears from the facts which you have submitted that since 1946, this family business has contracted services including cleaning septic tanks and cesspools and doing some repairs to on -site sewage systems, operating under the requirements of the Chester County Board of Health and the Commonwealth of Pennsylvania, Department of Environmental Resources (DER). You further note that you are qualified and registered in East Whiteland Township as well as with the Chester County Board of Health to perform services which include sewer line construction. However, you state that you requested that your name not be put on the advertised list of contractors to install sewer lines in East Whiteland Township. Nevertheless, under the last phase of sewerage you acknowledge that you installed three sewer hook -ups, but only upon the request of the individuals. You further acknowledge that you plan to install your own hook -up if permitted, and subject to the necessary inspections of any other contractor. You ask for an advisory as to how the above would be viewed by the public perception or "political malcontents." Referencing various Sections of the Ethics Law, you state that citizen officials, such as yourself, should not be discouraged from maintaining contacts with their communities through their occupations or professions, and you mention actions that have only an insignificant economic impact or that affect a class of the general public or a subclass. Finally, you note that the cost of sewage removal is $100 _plus the cost to the sewer plant of $50 per 2000 gallons of sewage, which is added to the bill for services rendered. Discussion: It is initially noted that you _have submitted a very general request for advice based upon various factual circumstances which you have submitted. In responding to your request, this Advice must, therefore, also be general in nature. It is also initially doted that your request, for advice may only be addressed with regard to prospective conduct. To the extent that you have submitted past conduct, such would be beyond the scope of an advisory and may not be addressed. As a Township Supervisor for East Whiteland Township, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Mr. Glenn Cockerham March 4, 1992 Page 3 Section 3 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. "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." • 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 lamily is a director, officer, owner, employee or -has .a financial interest Mr. Glenn Cockerham March 4, 1992 Page 4 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 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 vo a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Mr. Glenn Cockerham March 4, 1992 Page 5 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 applying the above provisions of the Ethics Law to the circumstances which you have submitted, Section 3(a) of the Ethics Law prohibits a public official /public employee 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. Your father is a member of your immediate family as defined in the Ethics Law. The family business which your father owns and which you manage is a business with which: you are associated as defined in the Ethics Law. • You would have a conflict of interest as to any matter before the Township Board of Supervisors pertaining to the proposed sewer extension . because your participation or vote could financially impact upon you and/or your family's business. Defeating the . proposed sewer extension would preserve private business opportunities for your family's business. A favorable vote approving the proposed sewer extension would result in private, pecuniary benefit to you through opportunities to install sewer. hook -ups. Thus, you would have a conflict of interest iri matters pertaining to the proposed sewer extension. In each instance of a conflict of interest, you would be required to abstain from any participation of any, nature, whatsoever, including but not limited to participating in discussions, voting, lobbying for a particular result, or any other use of the authority of your office. In each instance of a conflict of interest, you would further be required- to observe the disclosure requirements of Section 3(j) set forth above. You could not use any confidential information for a prohibited private pecuniary benefit or to the detriment of those who . compete with you and /or your family business in a private business capacity. The propriety of the proposed conduct has only been. addressed under the Et tics Law;. the applicability of any other• statute, co.41e, ordinance, regulation -: or other code of conduct other than. the Ethics I has, not been-considered in that they do . not it vplve an interpretation - , of. the Ethics Law. Specificaily Mr. Glenn Cockerham March 4, 1992 Page 6 not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for East Whiteland Township, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest as to any matters before the Board of Supervisors pertaining to the proposed sewer extension. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and the disclosure requirements of Section 3(j) as outlined above would have to be `satisfied. 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 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. ncerely, Vincent . Dopko Chief Counsel