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Home My WebLink About92-612Charles Kannebecker, Esquire Weinstein and Schneider 154 Pike Street Port Jervis, NY 12771 Dear Mr. Kannebecker: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 2, 1992 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. 92 -612 Re: Conflict, Public Official /Employee, Township Supervisor, Attorney, Private Clients. This responds to your letter of June 11, 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 is also an attorney, with regard to matters brought before the township by his private clients but which are unrelated to his representation of those clients. Facts: As a Supervisor for Delaware Township in Pike County, Pennsylvania, you request an advisory from the State Ethics Commission. You state that in the course of your profession as an attorney, you represent clients who live or work in Delaware Township. You indicate that you have not and will not represent clients in matters involving Delaware Township. However, there are clients who come before the Township with regard to matters wholly unrelated to your representation of them. You request an advisory delineating the restrictions of the Ethics Law which would apply to you where your private clients bring matters before the Township which are wholly unrelated to the scope of your attorney /client relationship with those clients. Discussion: As a Township Supervisor for Delaware Township in Pike County, Pennsylvania, 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. Charles Kannebecker, Esquire July 2, 1992 Page 2 (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 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. Charles Kannebecker, Esquire July 2, 1992 Page 3 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 circumstances which you have presented, it is initially noted that you have posed a very narrow inquiry as to the restrictions of the Ethics Law in situations where your private clients come before the Township in matters unrelated to your representation of those clients. This Advice shall be confined to responding to that narrow inquiry. Charles Rannebecker, Esquire =� July 2, 1992 Page 4 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. As a Township Supervisor, you would have a conflict of interest in matters brought before the Township by your private clients even if such matters are unrelated to your representation of those clients. This conclusion is based upon the Commission's decision in Miller, Opinion 89 =024. As noted in Miller, matters which come before a public official /public employee involving his private business or private clients place the public official/ public employee in a situation where he is faced with conflicting interests. In his private capacity, his duties are to the private firm and its clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interests of the governmental body with the duty being owed to the public rather than to private clients. Id. see also, Brooks, Opinion 89 -023. In each instance of a conflict of interest you would be required to abstain from any participation of any nature whatsoever and to 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 or the Rules of Professional Conduct. Conclusion: As a Supervisor for Delaware Township in Pike County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. In your capacity as a Township Supervisor, you would have a conflict of interest in matters brought before the Township by your private clients even if such matters are wholly unrelated to your representation of those clients. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and to satisfy the disclosure requirements of Section 3(j). 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 Charles Kannebecker, Esquire July 2, 1 Page 5 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 52.12. mt Vincent ` . Dopko Chief Counsel v•4