Loading...
HomeMy WebLinkAbout92-606George Retos, Esquire Retos & Held Retos Law Building 70 East Wheeling Street Washington, PA 15301 Re: Dear Mr. Retos: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1992 92 -606 Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Voting, Business with which Associated. This responds . to your letters of April 30, 1992, and May 21, 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 whose construction where he is employed has been selected as construction manager for a project being undertaken by a school district to construct a new school within the township. Facts: As Solicitor for North Franklin Township, a Second Class Township, you request an advisory on behalf of Mr. George David Leasure, a Township Supervisor. Mr. Leasure's construction firm has been selected as construction manager for a construction project within the Township. You state Mr. Leasure is an employee of the construction management firm. The project is being undertaken by a school district and is the construction of a new school within the Township. The School District solicited bids for a construction manager, and Mr. Leasure's construction firm was chosen from approximately 11 bidders after an elimination process. You acknowledge that the Township may be called upon to make determinations on issues regarding the construction. You state that you have advised Mr. Leasure to not take part in any discussions or vote concerning any 'inquiry brought to the Township by the school district architect 1= contractor. You. state that George Retos, Esquire June 18, 1992 Page 2 only one inquiry has been made to date and that Mr. Leasure did abstain from any involvement whatsoever. You inquire as to whether this is an appropriate handling of this matter for any future inquiries. Discussion: As a Township Supervisor for North Franklin Township, Mr. George David Leasure 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. "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. "Business with which he is associated." Any business in which the person or a member George Aetos, Esquire June 18, 1992 Page 3 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 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. George Rettig, Esquire June 1$, 1992 Page 4 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, 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. In this case, Mr. Leasure would have a conflict of interest as to future matters before the North Franklin Township Board of Supervisors involving the aforesaid construction project within the Township, for which Mr. Leasure's construction firm is serving as construction manager. In each instance of a conflict of interest, 4r. Leasure would be required to abstain from any participation of any nature whatsoever, including but not limited to participating in discussions, lobbying for a particular result and /or voting. In each instance of a conflict of interest, Mr. Leasure would be required to fully satisfy the disclosure requirements of Section 3(j) as set forth 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 North Franklin Township, Mr. George David Leasure is a public official subject to the provisions of the Ethics Law. Mr. Leasure would have a conflict of interest as to future matters before the North Franklin Township Board of Supervisors involving the construction project undertaken by a school district for the construction of a new school within the Township, where Mr. Leasure's construction firm where he is employed has been selected as construction manager for the project. In each instance of a conflict of interest, Mr. Leasure would be required to abstain from any participation of any nature whatsoever and to fully 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 George Retos, Esquire June 18, 1992 Page 5 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 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 S2.12. Sincerely, Dtrvio Vincent - J J. Dopko Chief Counsel s"