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HomeMy WebLinkAbout92-562STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 1, 1992 John Philip Diefenderfer, Esquire 92 -562 Stuckert and Yates One South State Street P.O. Box 70 Newtown, PA 18940 Re: Conflict, Public Official /Employee, Borough. Council Member, Borough Law Suit, Class Action Law. Suit, Borough Council Member as. Party in Class Action Law Suit Against Defendants Borough Has Also Sued. _ Dear Mr. Diefenderfer: This responds to your letters of February 13, 1992, and March 24, 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 borough council member who is a party to one or more class action law suits regarding alleged pollution of part of the borough's ground water where the borough has also filed suit against the parties alleged to be responsible. Facts: As Solicitor for Dublin Borough in Bucks County, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of Ms. Susan Coburn, a Member of the Dublin Borough Council. In your letter of inquiry dated February 13, 1992, you have submitted the following facts. You state that the groundwater of part of the Borough is polluted with carcinogens, and a large class of persons has been exposed through consumption of the water and by vapors from showers and bathing. There is a class action suit against the parties alleged to be responsible, which action seeks damages including medical monitoring. The Borough has also filed suit against the parties alleged to be responsible, for groundwater remediation and environmental damage. Additionally, the Environmental Protection Agency and the Pennsylvania Department of Environmental Resources are involved in various administrative proceedings. John Philip Diefenderfer, Esquire April 1, 1992 Page 2 Ms. Coburn is a named plaintiff in what you characterize as a "constellation of cases involving the class action." You have advised the Borough Council that Ms. Coburn does not have a conflict of interest under the definition of that term in the Ethics Law, since she is a class member, in support of which you cite Section 2 of the Ethics Law. The litigation(s) have been ongoing, but you state that it is "likely" that Ms. Coburn has yet to vote on an issue directly involving the parties alleged to be responsible for the pollution. You state that your instant request is prompted by public commentary suggesting that a complaint may be filed with this Commission alleging a conflict of interest. You have therefore advised Ms. Coburn to seek an advisory from this Commission as to whether she has a "conflict" under the Ethics Law. You add that nearly everyone in town has been exposed to the water, and would be a member of the class. You do not know if it would be possible to staff Borough Council with persons who could say with confidence that they are not members of the class. Following the receipt of your letter of inquiry dated February 13, 1992, clarification was sought from you as. to Ms. Coburn's status as to each law suit in which she is a party. Specifically, you were asked to clarify whether for each case in which Ms. Coburn is a party, that case is a class action in which she is just one member of the class, and whether Ms. Coburn is a named plaintiff in some related cases which are not themselves class actions. Further clarification was sought as to the nature of each such law suit and the relief requested therein. By letter dated March 24, 1992, you provided some clari- fication. You enclosed a list of the. Dublin Borough TCE Bucks County Cases, indicating that all have been consolidated. Said list is incorporated herein by reference. You also submitted a Second Amended Class Action and Consolidated Complaint filed in the matter of Manella, et al. v. Thompson, et al., docketed in the Court of Common Pleas of Bucks County to No. 89001069 -09 -2, which document consists of approximately 55 pages including... a Jury Demand and attached Exhibit, all of which is incorporated herein by reference. It is noted that you are listed in the document as "of counsel" on behalf of the plaintiffs. You point out that within the Manella caption, Ms. Coburn is named among the parties both in her own right and as parent and• guardian of Jenny Coburn, a minor. You state that the class action John Philip Diefenderfer, Esquire April 1, 1992 Page 3 allegations commence at paragraph - 50 :and set up two proposed classes, which you summarize as including: (a) All persons who have been exposed to poisoned well water, except persons in the employ of the PRP's covered, by Workers' Compensation; and (b) All persons who own real property, whose . property rights have been damaged poisoning of the well water aquifer. You state that you have been advised that under Pa.R.C.P. No. 1701, the definition of "class action" means that all members of the class are parties until the court refuses to certify it as such, so that, in your opinion, Ms. Coburn is a member of the class and so too are nearly all of the residents of the B Borough _. Currently, the class certification question is delayed until the Bucks County Court decides a second round of objections by the PRP's. You affirmatively represent to this Commission that Ms, Coburn is not a named plaintiff in any related case before the Bucks County Court which is not a class action. Ms. Coburn was, at one time also a proposed class representative:in a prior action in the United States Court for the Eastern District of Pennsylvania, wherein federal claims were settled, and the state claims were dismissed without prejudice to be adjudicated in state court, as you understand the facts to be. You state that you were not involved in that trial because your attempted intervention on behalf of the Borough was not successful in that case. Based upon all of the above, you request advisory from this Commission. .t . Discussion: It is initially noted that your request for an advice may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to' ,prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any may then submit a signed and sworn complaint which will' be' investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. As a Borough Council Member for Dublin Borough located in Bucks County, Pennsylvania, Ms. Susan Coburn is a public official as that term is defined under the Ethics Law, and hence she is subject to the provisions of that law. John Philip Diefenderfer, Esquire April 1, 1992 Page 4 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 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." A parent, spouse, child, brother or sister. 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 John Philip Diefenderfer, Esquire April 1, 1992 Page 5 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 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 applying the above provisions of the Ethics Law to the facts which you have submitted, the Ethics Law would not prohibit or restrict the private pursuit of a law suit by an individual, John Philip Diefenderfer, Esquire April 1, 1992 Page 6 merely because that individual also happens to be a public official /public employee. Rather, the restrictions of Section 3(a) of the Ethics Law apply to restrict the conduct of the individual in his capacity as a public official /public employee. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited 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. It is apparent that matters may come before the Dublin Borough Council where the elements of a conflict of interest would exist for Ms. Coburn. For example, the elements of a conflict of interest would arise as to matters pertaining to the Borough's own law suit against the very parties alleged to be responsible for damages suffered by Ms. Coburn and her minor child as parties in the class action law suit, where Ms. Coburn's use of authority of office as a Council -Member could have a direct or indirect impact on the class action suit and thus, derivatively could have an impact upon whether Ms. Coburn and /or her minor child receive an award relative to that law suit. However, if the exclusionary language of the-definition of "conflict" or "conflict of interest" as set forth in Section 2 of the Ethics Law, 65 P.S. S402 applies, Ms. Coburn would fit within the statutory exception and not have a conflict of interest as to such official action. The aforesaid exclusionary language provides as follows: . "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. 65 P.S. §402. in a request for clarification as to your initial letter of inquiry, you were asked specifically as to each case in which Ms. Coburn is a party, whether that case is a class action for which Ms. Coburn is just one member of the class, and whether Ms. Coburn is a named plaintiff in some related cases which are not themselves class actions. You were also asked for further clarification as to John Philip Diefenderfer, Esquire April 1, 1992 Page 7 the nature of each such law suit and the relief requested therein. Your response as to Ms Coburn's status as a plaintiff specifically stated as follows: Ms. Coburn . `is not a named plaintiff in any related case before Bucks County Court which is not a class action. (Diefenderfer Letter of March 24, "199,2 at 2) (Emphasis added). You additionally referenced Ms. Coburn's prior status as a ,proposed class representative in a prior action in the United States Court for the Eastern District of Pennsylvania, wherein,, the federal claims were settled and the state claims were dismissed without prejudice to be adjudicated in state court. Id. The qualifying language in your letter of clarification may be meaningful or it may be merely coincidental. Therefore, this Advice expressly assumes and is conditioned upon the assumption that in each law suit in which Ms. Coburn and /or her minor child are parties, .which case is related in any way whatsoever to the alleged polluted groundwater in Dublin Borough, the case - is a class action in which Ms. Coburn and /or her minor child are members of the class, and further, that Ms. Coburn and /or her minor child are not named plaintiffs in any related case or cases which are not themselves class actions. Based upon the express assumptions and conditions set forth above, Ms. Coburn and her minor child would be members of a "subclass" within the exclusionary language of the definition of "conflict" or "conflict of interest" as set forth in the Ethics Law. Therefore, Ms. Coburn would not have a conflict of interest as to matters; before the Dublin Borough Council which would affect her and /or her.minor child as members of the subclass as long as Ms. Coburn and/or her minor child would be affected to the same degree as all other members of the subclass. 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 Borough Code. Conclusion: As a Council Member for Dublin Borough in Bucks County, Pennsylvania, Ms. Susan Coburn is a public official subject to the provisions of the Ethics Law. Based upon the express assumptions, conditions, and qualifications noted above, Ms. Coburn would not have a conflict of interest in matters before the Dublin Borough Council which would affect her and/or her minor child as such. John Philip Diefenderfer, Esquire April 1, 1992 Page 8 members of the subclass of individuals who are class members in class action(s) seeking damages relating to the alleged groundwater pollution in Dublin Borough, as long as Ms. Coburn and /or her minor child would be affected to the same degree as all other members of the subclass. 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 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. Sincerely, Vincent J. Dopko Chief Counsel