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HomeMy WebLinkAbout92-554-SEdward M. Gallagher, Esquire Gallagher '& Gallagher 18 East Second Street P.O. Box 348 Media, PA 19063 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 29, 1992 92 -554 -S Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority Office or Confidential Information, Vote, Sewer Extension, Sewer Line Construction by Township Employees, Business with which Associated, Family Business Involving Sewage Services, Sewer Line Hook -ups by Supervisor, Supplemental Advice. Dear Mr. Gallagher: This responds to your letter of March 18, 1992, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a township supervisor as to official action regarding the use of township employees to undertake construction of a sewer extension, which extension has been authorized by a joint authority, 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 legal counsel for Mr. Glenn Cockerham, a Supervisor in East Whiteland Township in Chester County, Pennsylvania, you request a supplemental advisory from the State Ethics Commission. Following a letter of request of February 3, 1992, Advice of Counsel 92 -554 was issued which is incorporated herein by reference. Based upon the averments of fact submitted by Mr. Cockerham, that Advice concluded that Mr. Cockerham would have a conflict of interest as to any matters before the East Whiteland Township Board of Supervisors pertaining to the proposed sewer extension. Mr. Cockerham was advised that in each instance of a conflict of interest, he would be required to abstain from any participation of any nature whatsoever and to fully satisfy the Edward M. Gallagher, Esquire April 29, 1992 Page 2 disclosure requirements of Section 3(j). Following the issuance of Advice 92 -554, you undertook representation of Mr. Cockerham and have requested a supplemental advisory on his behalf in light of revised facts, or in the alternative, an appearance before the Commission. You now advise that certain statements in Mr. Cockerham's letter of inquiry dated February 3, 1992, are incorrect. You state that pursuant to the Municipality Authorities Act of 1945, 53 P.S. 5301, et sea., it is the Joint Authority rather than the Township Board of Supervisors which has the legal power to decide whether to undertake the sewer extension. You affirmatively represent that the decision to undertake the sewer extension is not made by the Township Board of Supervisors. Accordingly, you state that Mr. Cockerham's letter of February 3,. 1992 is in error when he discusses his role in deciding whether the extension would occur since this is not his decision to make as a Township Supervisor. In this regard, it is noted that in various telephone conversations, Assistant Counsel for the Commission was informed that the Township Board of Supervisors have voted upon a matter consisting of a conglomeration of the following two issues: 1. Whether to ratify the decision of the Authority to approve the proposed sewer extension; and 2. Whether to use township employees to do the work. Assistant Counsel was also informed that Mr. Cockerham took part in this matter. You specifically acknowledge that there has been and may continue to be discussion and formal action taken by the Township Supervisors regarding whether the Authority could hire Township employees to undertake construction of the sewer line extension. You state that since Mr. Cockerham has nothing to do with the decision regarding the undertaking of the sewer line expansion, it does not seem that there would be any conflict of interest regarding his participating in decisions concerning the use of Township employees. You seek advice on this issue. You confirm that Mr. Cockerham's business deals primarily with cleaning on -site septic tanks and cesspools and maintenance and repair of on -site systems. However, you affirmatively represent that Mr. Cockerham's company is not involved in the type of work required for sewer line extensions and that Mr. Cockerham would not under any circumstances be interested in participating in this type of work. Furthermore, you acknowledge that a small part of Mir. Cockerham's business does involve the lateral "hook -ups" wherein a Edward M. Gallagher, Esquire April 29, 1992 Page 3 private property owner taps into a municipal sewer line. However you state that Mr. Cockerham in his capacity as a Township Supervisor has done nothing to increase or enhance this small part of his business. You conclude by stating your opinion that since the Township did not decide to expand the sewer system, there is no conflict of interest by Mr. Cockerham continuing to function as a Township Supervisor under the circumstances as you have submitted them. Based upon all of the above, a supplemental advice has been requested. Discussion: It is initially noted that your request for a supplemental advisory .may only be addressed with regard to prospective conduct. To the extent that Mr. Cockerham may already have :taken action in his official capacity, through reported "ratification" of the action of the= Joint Authority, such past conduct would be beyond the scope of an advisory and may not be addressed. As a Township Supervisor for East Whiteland Township in Chester :County, Pennsylvania, Mr. Glenn Cockerham is •a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. The relevant provisions of the Ethics Law which would be applicable in this matter have already been fully set forth in Advice 92 -554 and are incorporated herein by reference. They will not be repeated, but rather," the focus of this supplemental Advice shall be directed toward the narrow issues which you have raised in light of the erroneous statements previously submitted to thif Commission as "facts." Based upon your affirmative representations and assurance; to this Commission that it was the Joint Authority, rather than the East Whiteland Township Board of Supervisors, which had the legal power to decide whether to undertake the proposed sewer extension; that the Township Board of Supervisors and specifically Mr. Cockerham have nothing to do with that decision; and further that Mr. Cockerham's business is not involved in the type of work required for sewer line extensions and that he would not under any circumstances "be interested" in participating in this type of work, from which it is assumed that neither Mr. Cockerham, any of hisinmediateiy family members, nor the .company itself would so participate, Mr. Cockerham would not have a conflict of interest Under the Ethics prospective matters before the Board of Supervisors as to - whether the Authority could hire Township employees to undertake construction of the sewer line expansion. Edward M. Gallagher, Esquire April 29, 1992 Page 4 -As for the lateral hook -ups, whereby a private property owner taps into - a municipal sewer line, you have specifically represented and assured this Commission that Mr. Cockerham in his capacity as a Township Supervisor has done nothing to increase or enhance this small part of his business. Therefore, based upon your representations and assurances, you are advised as to Mr. Cockerham that Section 3(a) of the Ethics Law does not apply to restrict a public official in his purely private business pursuits, but rather only applies to restrict the conduct of a public official where that conduct is in his official capacity. It is parenthetically observed that this matter has been a reprehensible example of how the advisory process should not be used . Although the Commission recognizes and fulfills the statutory duty of providing written advisories to persons who truthfully -disclose all of the material facts pertaining to their request, the intended process has, in this case, been undermined from its inception through the submission of erroneous, misstated "facts which -not surprisingly - resulted in the pointless issuance of the prior Advice. An Advice is only as good as the facts upon which it is based. The extensive time and resources expended by this agency in: issuing the prior Advice, which was at best an academic exercise; issuing this supplemental Advice; handling the numerous informal inquiries from the public and press as well as Mr. Cockerham and attorneys, have largely been a waste of limited resources allocated to this Commission and funded by taxpayers, which would have been better spent pursuing legitimate purposes under the Ethics Law. See, Swick/Aman, Opinion 91 -006, where the full Commission rebuked such avoidable waste. 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. Conclusion: As a Township Supervisor for East Whiteland Township in Chester County, Pennsylvania, Mr. Glenn Cockerham is a public official subject to the provisions of the Ethics Law. Based upon the facts as they have been submitted in the supplemental request for an advisory, and conditioned upon the affirmative representations and assurances made to this Commission as noted above, Mr. Glenn Cockerham would not have a conflict of interest in prospective matters before the Board of Supervisors regarding whether the Joint Authority could hire Township employees to undertake construction of the sewer line extension. 4ection 3 of the Ethics Law would not apply to restrict Mr. Cocks am as to Edward M. Gallagher, Esquire April 29, 1992 Page 5 purely private business pursuits such as installing lateral hook- ups, but - rather applies to Mr. cockerham's conduct in his official capacity. 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 has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This_ietter 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 52.12. ncerely, Vincent . Dopko Chief Counsel