HomeMy WebLinkAbout92-556STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OP COUNSEL
March 6, 1992
Peter R. Henninger, Jr., Esquire
Law Offices of Pannebaker and Jones, P.C.
4000 Vine Street
Middletown, PA 17057 -0510
92 -556
Re: Conflict; Public Official /Employee; Township Supervisor;
Private Contractor; Excavation, Installation and Repair of
On-lot Sewage Systems Subject to Review by Sewage
Enforcement Officer.
Dear Mr. Henninger:
This responds to your letters of February 4, 1992 and
February 7, 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, who, in his capacity as a private contractor,
participates in the excavation, installation and repair of on - lot
sewage systems subject to review by the township sewage
enforcement officer.
Facts: As Solicitor for Londonderry Township in Dauphin County,
Pennsylvania you seek the advice of the State Ethics Commission
on behalf of Mr. Paul Geyer, who was elected a Township
Supervisor. in November, 1991. In a private capacity, Mr. Geyer
acts as a private contractor, participating in the excavation,
installation and repair of on -lot sewage systems. You have
submitted a copy of a letter dated November 25, 1991, from Ms.
Jeanne Schademan, Water Quality Specialist for the Commonwealth
of Pennsylvania, Department of Environmental Resources (DER),
directed to the Township, which letter is incorporated herein by
reference. You characterize Ms. Schademan's letter as setting
forth DER's opinion that by virtue of his position as a Township
Supervisor, Mr. Geyer functioned as an employer of the Township's
Sewage Enforcement Officer (SEO) and thereby created a conflict
of interest. Ms. Schademan stated that their legal counsel
suggested that Mr. Geyer agree not to perform construction,
installation or testing work associated with the Sewage
Facilities Act within Londonderry Township during his term of
office. It is noted that Mt. Schademan's letter references
regulations (25 Pa. Code Chapter 72%41(8 - )(h)) which she
Mr. Peter R. Benninger, Jr.
March 6, 1992
Page 2
characterizes as prohibiting an SEO from official involvement in
such work in which an employer of the SEO has a financial
interest.
You have submitted a copy of a response letter dated January
7, 1992, from the Township Secretary, Ms. Joyce A. Lingle, to Ms.
Schademan, which you characterize as setting forth Mr. Geyer's
position that (a) he was not a member of the board which
originally employed the SEO, and (b) he refrained from voting on
the reappointment of the SEO for 1992 and thus could not be
considered an employer of the SEO. The said letter of January 7,
1992, is incorporated herein by reference. It is noted that the
letter further sets forth Mr. Geyer's statement that as a
contractor who repairs and /or installs systems only after test
results have been verified by a certified SEO, he is in no way
dictating the type or placement of systems and has no input into
permit issuance or inspections of the systems.,
Finally, you have submitted a letter dated January 29, 1992,
from Ms. Schademan to the Township _ Supervisors, which you
characterize as stating that DER could not support Mr. Geyer's
contentions and that DER was bound by the advice of their legal
counsel provided by this Commission. You note that the said
letter suggested that you contact this Commission for a written
determination, should you so desire. The said letter of January
29, 1992, is incorporated herein by reference.
Based upon all of the above, you request an advisory from
this Commission.
• Discussion: As a Township Supervisor for Londonderry Township in
Dauphin County, Pennsylvania, Mr Geyer 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.
The following terms are defined in the Ethics Law as
follows:
Section 2. Definitions.
Mr. Peter R. Henninger, Jr.
March 6, 1992
Page 3
"Conflict or conflict of interes Use,
by a public- official or public employee of
the authority_ of his office or employment of
any confidential information received through
his holding public office or employment fox .
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.
"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, owner, employee or has a
financial .interest.
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.rany transgression
thereof but merely to provide a complete response to.the question
presented.
Section 3(j) of . the Ethics provides as follows:
Section 3. Restricted activities.
Mr. Peter R. Henninger, Jr.
March 6, 1992
Page 4
(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 mould 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 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 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
facts which you have submitted, it must initially be noted that-
this Commission does not have the statutory jurisdiction to
enforce DER regulations but rather, the consideration of your
request for advice must be within the purview of the Ethics Law
itself.
Pursuant to Section 3(a) of the Ethics Law, a piiblic
official /public employee may not use the authority of public
Mr. Peter R. Henninger, Jr.
March 6, 1992
Page 5
office /employment or confidential information received by
holding such a public position 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. Section 3(a) of the Ethics Law
applies only to restrict a public official /public employee in his
public capacity rather than in his private business dealings,
It is clear that the authority . of office of a Township
Supervisor would include official decisions pertaining to the SEO
such as his continued employment, compensation, benefits, and the
like. On the other hand, the authority of an SEO would include
review of septic system work such as that performed by Mr. Geyer.
Thus, in his private capacity, Mr. .Geyer would be seekg a
favorable review by the very same SEO over which he exercises
official control as a Township Supervisor.
The Commission considered a similar situation in Bassi,
Opinion 86- 007 -R. In Bassi, a county commissioner sought to
enter into .a lease with an authority upon which a county employee
served as an authority member. The Commission's opinion stated,
inter alia, that the county employee /authority member should
abstain from participating in any matter relating to the lease.
The Commission further stated that if the county commissioner
received the lease, he could not take any future action related
to the county employee in matters pertaining to his employment as
well as matters submitted to the commission, by that county
employee. Public' disclosure was also required along with
abstention. Bassi, supra, at 3 -4.
Although Bassi was decided under former Act 170 of 1978 -and
therefore would not be controlling, the Commission's reasoning in
Bassi would continue to apply under Act 9 of 1989. ,See Woodrinq,
Opinion 90 -001. Therefore, Mr. Geyer would have a conflict of
interest in any matter before the Board of Township Supervisors
involving the SEO as a Township employee (such as his maintenance
of employment, compensation, benefits and the like), as well as
in any matter presented to the Board by the SEO.
It is further noted that should Mr. Geyer and /or any of his
private clients have a.•matter before the Board of Supervisors,
such would constitute a conflict of interest for Mr. Geyer as
well. .See Miller, Opinion "89 -024.
In teach
be required
whatsoever,
discussions,
-other use of
Instance of a conflict of interest, Mr,. ': Geyyer would
to abstain from any participation of any nature
including but not limited to participating in
- voting, lobbying for a particular result, or any
the authority of office. . In each instance of a
Mir. Peter R. Henninger, Jr.
March 6, 1992
Page 6
conflict of interest, Mr. Geyer would further be required to
observe the disclosure requirements of Section 3(j) as set forth
. C above .
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 Londonderry
Township in Dauphin County,. Pennsylvania, Mr.. Paul Geyer is a
public official subject to the provisions of _the Ethics Law. In
his capacity as a public official, Mr. Geyer would have a
conflict of interest as to any matter before the Board of
Supervisors relating to the Township's Sewage Enforcement Officer
as a Township employee, including but not. limited to his
maintenance of employment, compensation, benefits, and the like.
Mr. Geyer would have a conflict of interest as to any matter
presented to the Board of Supervisors by the Sewage Enforcement
Officer. Mr. Geyer would have .a conflict of interest in any
matter before the Board of Township Supervisors involving himself
and /or any of his clients. In each instance of a conflict of
interest, Mr. Geyer would be required to abstain from any
participation of any nature whatsoever and he would be required
to observe 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 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. fu1-1
Commission review this Advice. A personal appearance before the
Commission will be scheduled and a formal Opinion froirri the
Commission will be. issued. Any such appeal must be in writing
Mr. Peter R. Henninger, Jr.
March 6, 1992
Page 7
and must be received at
of this Advice pursuant
the Commission within 15 days of the date
to 51 Pa. Code 52.12.
Sincerely,
Vincent J. Dopko
Chief Course l