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HomeMy WebLinkAbout04-589 CareyAlan S. Carey Supervisor, Berwick Township 424 Abbottstown Pike Abbottstown, PA 17301 Dear Mr. Carey: ADVICE OF COUNSEL August 31, 2004 04 -589 Re: Conflict; Public Official; Township Supervisor; Agreement for Joint Police Services; Police Commission; Regional Police Department; Lease. This responds to your letter of July 26, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to entering into an agreement to lease office space to a joint police commission for a regional police department where: (1) the township is a member of the regional police department; (2) the regional police department is governed by a police commission; (3) participating municipalities pay entrance fees that are to be used in acquiring a facility for the regional police department; (4) participating municipalities make contributions to the police commission and appoint representatives to serve on the police commission; (5) the joint police commission is responsible for determining the location of the regional police office; and (6) the township supervisor's location has been approved and recommended by the member municipalities as well as an independent committee formed to analyze /investigate the options and make recommendations to the police commission. Facts: As a Township Supervisor for Berwick Township ( "Township "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. The Township is a member of the Eastern Adams Regional Police Department ( "EARP "). The EARP is governed by a Police Commission. The Police Commission was established by an Agreement for Joint Police Services ( "Agreement ") among the Township and two other municipalities, Oxford Township and New Oxford Borough. You have submitted a copy of the Agreement, which is dated September 10, 2001, and is incorporated herein by reference. Per the Agreement, the function and purpose of the Police Commission is to "provide for, staff, equip, administer and direct police protection services, to the benefit Carey, 04 -589 August 31, 2004 Page 2 of all parties . . . ." (Agreement, § 1, ¶ 1). The Police Commission consists of representatives appointed by each member municipality of EARP, which representatives serve as liaisons between the citizens and the municipality they represent and the Police Commission. (Agreement, § 1, ¶ 3). Per the Agreement, the Police Commission is authorized to enter into contracts (Agreement, § 4, ¶ 1). In addition, the Police Commission is responsible for preparing and submitting to the member municipalities for approval an annual budget ( Agreement, § 2, ¶ 1). The member municipalities are responsible for contributing funds to cover expenses incurred by the Police Commission in the staffing, operation, maintenance, equipping and administration of the joint police protection services (Agreement, § 2, ¶ 5). One of the specific responsibilities of the Police Commission is to determine the location of the Police Office. (Agreement, § 1, II 2(k)). The Agreement provides that all entrance fee monies received from joining municipalities shall be utilized for acquiring a facility for EARP. (Agreement, § 9, 3). Per the Agreement: the Police Department shall be in a facility independent of any Municipal Office. Purchasing, constructing or renting facilities would accomplish this. Upon signing of this Agreement, a Committee comprised of 1 resident other than an Elected Board Member of each Municipality, shall be formed to analyze and investigate the available options. The Committee shall report directly to, and make recommendations to the Commission. (Agreement, § 9, ¶ 1). You state that you own a shopping plaza located at 6945 York Road with space available to rent to EARP. You state that this location has been approved and recommended by an independent committee formed pursuant to Section 9 of the Agreement, as well as by each of the member municipalities. You request an advisory from the State Ethics Commission as to whether entering into the proposed lease agreement would cause you to transgress the Ethics Act. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, 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 person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such as the approval of your location by the Township as a member municipality of EARP, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: Carey, 04 -589 August 31, 2004 Page 3 § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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. 65 Pa. C. S. §§ 1103(a), (j). 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. Carey, 04 -589 August 31, 2004 Page 4 "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint 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. 65 Pa.C.S. § 1102. 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. In each instance of a conflict, Section 1103(j) requires the public official /public 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. The abstention requirement is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. 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, Pavlovic, Opinion 02 -005. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is Carey, 04 -589 August 31, 2004 Page 5 associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also requires that the public official /public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In applying the above provisions of the Ethics Act to the instant matter, Section 1103(a) of the Ethics Act does not prohibit a public official /public employee from having outside business activities or employment, such as leasing office space. However, Section 1103(a) does prohibit a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position to advance his private business interests. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. As to the specific question you have posed, you are advised that conditioned upon the assumptions that: (1) there would be no improper understandings under Section 1103(b) /Section 1103(c) of the Ethics Act, and (2) you would not use your public position as a Township Supervisor to advance your private business dealings with the Police Commission, the Ethics Act would not prohibit you from entering into a lease agreement with the Police Commission to rent space for EARP's office to the extent you would be acting in a purely private capacity. Given that there is a reasonable and legitimate expectation that a business relationship will form between you and the Police Commission, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters before the Township involving the Police Commission or EARP. You would specifically have a conflict of interest in matters before you as a Township Supervisor pertaining to the lease of facilities by the Police Commission. Additionally, any payment(s) or contribution(s) by the Township to the Police Commission would present a conflict of interest for you to the extent they would impact upon the Police Commission's ability to rent your facility or to pay rent for your facility. Additionally, you would have a conflict of interest regarding the nomination, appointment, or reappointment by the Township of representative(s) to serve on the Police Commission, because such individuals would participate in decision - making as to the rental of the facility for the Police Office. This conclusion is based upon the State Ethics Commission's ruling in Confidential Opinion, 02 -004 (public official with conflict cannot "choose the chooser "). See Bassi, Opinion No. 86- 007 -R, and Woodrinq, Opinion No. 90 -001 (involving reciprocal arrangements). In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. The facts that you have submitted do not reveal any basis to conclude that the Township itself would be a party to the lease agreement for your facilities. However, you are advised that if the Township would be a party to such lease agreement, and the value of the contract would be $500 or more, the restrictions and requirements of Section 1103(f) of the Ethics Act would apply and would have to be observed. 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 or the Intergovernmental Cooperation Act. Carey, 04 -589 August 31, 2004 Page 6 Conclusion: As a Supervisor for Berwick Township ( "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. This Advice is limited to addressing future conduct only. Conditioned upon the assumptions that: (1) there would be no improper understandings under Section 1103(b) /Section 1103(c) of the Ethics Act, and (2) you would not use your public position as a Township Supervisor to advance your private business dealings, the Ethics Act would not prohibit you from acting in a purely private capacity to enter into a lease agreement with the Police Commission established by the Township, Oxford Township and New Oxford Borough. Given that there is a reasonable and legitimate expectation that a business relationship will form between you and the Police Commission, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters before the Township involving the Police Commission or the Eastern Adams Regional Police Department ( "EARP "). You would specifically have a conflict of interest in matters before you as a Township Supervisor pertaining to the lease of facilities by the Police Commission. Any payment(s) or contribution(s) by the Township to the Police Commission would present a conflict of interest for you to the extent they would impact upon the Police Commission's ability to rent your facility or to pay rent for your facility. You would have a conflict of interest regarding the nomination, appointment, or reappointment by the Township of representative(s) to serve on the Police Commission. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. The restrictions and requirements of Section 1103(f) of the Ethics Act must be observed when applicable. 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