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HomeMy WebLinkAbout02-621 StarrDona L. SSarr 53 W. 33� Street Reading, PA 19606 ADVICE OF COUNSEL December 2, 2002 Re: Conflict; Public Official /Employee; Township Supervisor; Immediate Family; Spouse; Business With Which Associated; Business Client /Customer; Vote. Dear Ms. Starr: 02 -621 This responds to your letter of October 29, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., would present any prohibition or restrictions upon a township supervisor with regard to a request for relief from zoning regulations or a development plan relating to a proposed addition to a local parish, when the supervisor's spouse: (1) has previously performed work for the parish; (2) has a pending contract to perform additional work for the parish; and (3) may have a reasonable and legitimate anticipation of performing work for the parish as to the proposed addition. Facts: As a Township Supervisor for Exeter Township ( "Township "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. The Exeter Township Board of Supervisors ( "Board ") will be considering certain matters related to a proposed addition to the parish of St. Catherine of Siena located in the Township. The first matter for consideration will be a request for relief from zoning regulations. If the request for relief is granted, the Board will further consider a development plan for the proposed addition. St. Catherine of Siena has two parishes: the parish located in the Township and another parish located in the Borough of Mt. Penn. Your husband has, at various times, contracted to perform work at both parish locations. In April 2002 your husband, through "S & S Concrete," contracted to perform sidewalk replacement work at the parish in Mt. Penn at a cost of $6,200. You state that the contract was satisfied by both parties. Your husband also recently sealed the concrete at the parish in Mt. Penn at a cost of $145. As for the parish located in the Starr 02 -621 December 2, 2002 Page 2 Township, your husband recently contracted to seal the concrete at a cost of $600, which work has not yet been done. You state that if the request for relief from zoning regulations would be granted and a new building would be constructed, your husband could "theoretically" be asked to install the sidewalks or perform any other concrete flatwork. However, you maintain that your husband has not been solicited for this work and does not anticipate being solicited for this work. Based upon the foregoing, you ask whether you would have a conflict of interest as to voting on any issues pertaining to St. Catherine of Siena. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Exeter Township, you are a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. 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. The term 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. Starr 02 -621 December 2, 2002 Page 3 "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity organized for profit. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -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. Starr 02 -621 December 2, 2002 Page 4 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. Your husband is clearly a member of your "immediate family" as that term is defined in the Ethics Act. Additionally, S & S Concrete is a business with which your husband is associated to the extent your husband is a director, officer, owner, or employee of the business or has a financial interest in the business. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your office as a Township Supervisor, or confidential information received by being a Township Supervisor, for the private pecuniary benefit of yourself, your husband, a business with which your husband is associated, or private client(s) /customer(s) of your husband or a business with which your husband is associated. See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. In Kannebecker, Opinion 92 -010, the State Ethics Commission determined that a township supervisor, who in his private capacity was an attorney, would have a conflict of interest as to matters before the township involving ongoing client(s) or client(s) for whom he was on retainer, even if he would not represent such client(s) as to the matter pending before the township. The Commission determined that as a general rule, a conflict would not exist as to former client(s), but that under certain circumstances, a conflict could exist as to former client(s) depending upon factors such as the number of prior representations of the given client and the period of time over which such occurred. Additionally, the State Ethics Commission has determined that a reasonable and legitimate expectation that a business relationship will form will support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). Per the submitted facts, your husband has a pending contract and therefore an ongoing business relationship with St. Catherine of Siena. This fact would be sufficient in and of itself to establish that in your capacity as a Township Supervisor, you would have a conflict of interest as to the request for relief from zoning regulations and /or development plan for the proposed addition to the parish of St. Catherine of Siena. Kannebecker, supra. The additional facts that your husband: (1) recently performed other contractual services for St. Catherine of Siena; and (2) could perform services as to the proposed addition, would provide further support for this conclusion. See, Kannebecker, supra; Amato, supra. Starr 02 -621 December 2, 2002 Page 5 In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for Exeter Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your husband is a member of your "immediate family" as that term is defined in the Ethics Act. "S & S Concrete" is a business with which your husband is associated to the extent your husband is a director, officer, owner, or employee of the business or has a financial interest in the business. Given that your husband has a pending contract and therefore an ongoing business relationship with St. Catherine of Siena, you would have a conflict of interest in your capacity as a Township Supervisor as to the request for relief from zoning regulations and /or development plan for the proposed addition to the parish of St. Catherine of Siena. The additional facts that your husband: (1) recently performed other contractual services for St. Catherine of Siena; and (2) could perform services as to the proposed addition, would provide further support for this conclusion. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787 -0806. Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel