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HomeMy WebLinkAbout08-555 WILLIAMSDave Williams 55 Slocum Street Forty Fort, PA 18704 -4020 Dear Mr. Williams: ADVICE OF COUNSEL May 20, 2008 08 -555 This responds to your letter dated April 4, 2008 (postmarked April 12, 2008, and received April 14, 2008), by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a borough council member with regard to performing the duties of his public office as a borough council member, where: (1) the borough council member is employed as a building inspector with a "third party agency" that performs building inspections; and (2) the borough building code official requires that commercial electrical inspections be performed by a "third party agency." Facts: As a Member of Council for the Borough of Forty Fort ( "Borough "), located in Luzerne County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You began serving as a Borough Council Member in January 2000. As a Borough Council Member, you serve on the Law and Ordinance Committee, the Street Committee, and the Revenue Committee. The Borough currently employs an individual other than you as the full -time building code official. The Borough building code official serves as the Borough code enforcement officer and building inspector. You state that for legal liability reasons, the Borough building code official requires that commercial electrical inspections be performed by a "third party agency." In your private capacity, you are employed as a building inspector with a "third party agency" named "Building Inspection Underwriters, Inc." ( "BIU "). BIU performs all aspects of building inspections. You state that you are a salaried employee of BIU, and you do not receive a bonus, commission, finder's fee, or any other incentive for generating business. Williams, 08 -555 May 20, 2008 Page 2 You state that a commercial food distributor recently requested that BIU perform electrical inspections at said distributor's facility located in the Borough. Due to your status as a Borough Council Member, you requested that BIU assign an inspector other than you to perform the inspections of the commercial food distributor's Borough facility. You state that in your capacity as a Borough Council Member, you will abstain from voting on any matter that concerns building inspections in general or electrical inspections in particular. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon you with respect to performing your duties as a Borough Council Member or as a building inspector for BIU. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester 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 requester 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 requester 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 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 Borough Council Member, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 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 Williams, 08 -555 May 20, 2008 Page 3 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. "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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Williams, 08 -555 May 20, 2008 Page 4 The use of authority of office 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 each instance of a voting conflict, Section 1103(j) of the Ethics Act 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. 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. In applying the above provisions of the Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interests does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private clients(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a business with which the public official /public employee or immediate family member is associated or a private customer /client would have a matter pending before the governmental body, then generally, the public official /public employee would have a conflict of interest as to such matter. Kannebecker, supra; Miller, supra. 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. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation and in the instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In applying the above provisions of the Ethics Act to the instant matter, you are advised that BIU is a business with which you are associated in your capacity as an employee of BIU. In your private capacity as a building inspector for BIU, Section 1103(a) of the Ethics Act would not prohibit you from performing inspections on commercial buildings located in the Borough. However, generally, you would have a conflict of interest in matters before Borough Council that would financially impact - -or would be reasonably anticipated to financially impact - -you, BIU, or BIU's customer(s) /client(s). See, Miller, supra; Kannebecker, supra; Amato, supra. The submitted facts do not indicate whether the Borough's building code official has the authority to recommend BIU or to direct work to BIU in the course of performing his official duties. To the extent that the Borough's building code official would have such authority, you would generally have a conflict of interest in matters pertaining to the Borough's building code official. Cf., Bassi, Opinion 86- 007 -R, Woodrinq, Opinion 90 -001, Elisco, Opinion 00 -003, and Confidential Opinion, 05 -004. Williams, 08 -555 May 20, 2008 Page 5 In each instance of a conflict of interest, you would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of Council for the Borough of Forty Fort ( "Borough "), located in Luzerne County, Pennsylvania, 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. Building Inspection Underwriters, Inc. ( "BIU ") is a business with which you are associated in your capacity as an employee of BIU. In your private capacity as a building inspector for BIU, Section 1103(a) of the Ethics Act would not prohibit you from performing inspections on commercial buildings located in the Borough. However, generally, you would have a conflict of interest in matters before Borough Council that would financially impact - -or would be reasonably anticipated to financially impact - -you, BIU, or BIU's customer(s) /client(s). To the extent that the Borough's building code official would have the authority to recommend BIU or to direct work to BIU in the course of performing his official duties, you would generally have a conflict of interest in matters pertaining to the Borough's building code official. In each instance of a conflict of interest, you would be required to abstain fully from participation, and in the instance of a voting conflict, 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) of the Ethics Act, 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 requester 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, Robin M. Hittie Chief Counsel