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HomeMy WebLinkAbout80-050 SowersLloyd P. Sowers Grantham Road RD #3 Dillsburg, PA 17019 III. Applicable Law: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 14, 1980 OPINION OF THE COMMISSION RE: Township Supervisor - Developer Dear Mr. Sowers: I. Issue: You requested an opinion on the following: A. May a township supervisor who owns construction equipment do grading for a developer in the township where that developer has submitted subdivision plans to the township and has posted a bond with the township to guarantee completion of the work associated with the subdivision? 80 -050 B. May a township supervisor dig probe holes for township residents? II. Factual Basis for the Determination: You indicate you are a township supervisor who owns construction equipment. From time to time you may be asked to do grading for a developer whose plans have been approved by the township supervisors. You may also be asked to dig probe holes for township residents. There is no dispute or doubt that as a township supervisor you are a "public official" which is defined in the Ethics Act as follows: Lloyd P. Sowers October 14, 1980 Page 2 "Public official - Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. 'public official' shall not include any appointed official who receives no compen- sation other than reimbursement for actual expenses." 65 P.S. 401. Section 3 of the Ethics Act, in pertinent part provides as follows: "Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immdediate family, or a business with which he is associated. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, any- thing of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby." 65 P.S. 403(a) & (b). Lloyd P. Sowers October 14, 1980 Page 3 III. Discussion: The Commission believes that Section 3 as cited above is clear. You may not use your office as a township supervisor to obtain work such as the grading work you describe. Equally clear is the conclusion that the developer in question may not attempt to influence your vote as supervisor, on his project by holding out the "promise of future employment." While subsection (b) addresses the prohibitions against the developer in this case, the Commission feels compelled to address "other areas of conflict" pursuant to Section 3(d) which might be perceived in the relation- ship between a developer and you as township supervisor. These other possible areas exist where the appearance of a conflict may arise are described more fully below. The question of whether you as supervisor should vote on the approval /disap- proval of a developer's plans arises, for example, and whether a supervisor- developer contract may be allowed. This question should be addressed. The answer to the question depends on the factual circumstances and actual and temporal relationship between the individual supervisor and developer. First, if the supervisor knows at the time of his vote that he has been or can legitimately expect to be asked to do work for - the developer or that he will offer his services to the developer, the supervisor should refrain from voting on the project and state his reasons for doing so. The "legitimate expectation" of work can arise from many factors: the fact that the supervisor and developer have often worked together in the past; the fact that the supervisor owns the only grader or particular type of machine required by the developer in the locality, for example. If, however, the supervisor has not been hired and has no legitimate expectation of being hired by the devloper or offering his services to the developer, the supervisor may and should vote on the project. Second, however, if the supervisor who has voted on a project subsequently obtains employment or acquires a contract with the developer on whose project he voted, this employment should be publicly disclosed. The supervisor should then refrain from voting on any matters subsequently arising regarding the project, including but not limited to acceptance of the roads of the subdivision, release of the guarantee bond, etc. Public disclosure of employment by the developer should be made at the next public meeting of the Supervisors and should be made a part of the minutes of that meeting. Lloyd P. Sowers October 14, 1980 Page 4 As to your second question, the Ethics Act was not designed to preclude public officials from engaging in business with the public, in general. Residents of the township are members of the public to whom you can offer your services to dig probe holes. However, as stated above, this work may not be acquired as a result of your public office nor be offered as an attempt to influence your official action, judgment or vote. Finally, if you either obtain work from a developer or dig probe holes, your work, if subject to inspection by the Township, may not be inspected by you. In addition, in order to avoid the appearance of a conflict your work cannot be inspected for approval by anyone (township inspector, engineer, etc.) who is subject to your approval by vote or is under your supervision. V. Conclusion: As a public official (supervisor) your conduct in relation to the developer from whom you may obtain work should be governed by the guidelines developed in the above Discussion. Specifically you must: (1) Not use your official position to obtain such employment; (2) Not utilize confidential information gained in your official capacity to secure such employment; (3) Refrain from voting on a developer's plans where you will seek, have been asked or can reasonably and legitimately anticipate being asked to perform work for the developer; (4) Refrain from voting on matters related to a developer from whom you obtain /secure work where you as Supervisor may be asked to vote on these matters which arise after you have obtained /secured such work; (5) Make public your relationship with the developer or acquired with the developer and the reasons for your abstention as required by (3) and (4) immediately above. Lloyd P. Sowers October 14, 1980 Page 5 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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. PJS /rdp PAUL J. S 4ZTH Chairman