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HomeMy WebLinkAbout08-577 GambleHarry G. Gamble, P.E. 28 Monticello Drive Lebanon, PA 17042 Dear Mr. Gamble: ADVICE OF COUNSEL September 26, 2008 08 -577 This responds to your letters of August 12, 2008, and August 18, 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 Member of the Pennsylvania Board of Claims ("Board of Claims ") with regard to participating in matters before the Board of Claims involving the Pennsylvania Department of Transportation ( "PennDOT ") or the Pennsylvania Turnpike Commission ( "Turnpike Commission "), where such Member in his private capacity is employed by an engineering consulting firm that performs highway transportation design and planning services for PennDOT and the Turnpike Commission. Facts: As a Member of the Board of Claims, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You state that the Board of Claims is both a judicial and an independent administrative agency. The Board of Claims has jurisdiction to hear and determine contract claims against the Commonwealth that equal or exceed $300. The Board of Claims consists of three Members appointed by the Governor. The membership of the Board of Claims must be comprised of an attorney, a registered civil engineer, and a resident citizen of the Commonwealth. You are the engineer Member of the Board of Claims. You state that in your private capacity, you are employed as a Project Manager with an engineering consulting firm named "McCormick Taylor." McCormick Taylor performs highway transportation design and planning services for PennDOT and the Turnpike Commission. As a Project Manager, you are involved in the design phase of contracts. You state that you have been and expect to continue to be involved in the design phase of McCormick Taylor's PennDOT and Turnpike Commission projects. PennDOT and the Turnpike Commission do not engage McCormick Taylor for construction management except in rare instances. You state that PennDOT and the Turnpike Commission are involved in 31% of the active cases before the Board of Claims, with issues involving disputes arising from Gamble, 08 -577 September 26, 2008 Page 2 the construction phases of PennDOT and Turnpike Commission projects. You further state that McCormick Taylor has never filed a claim with the Board of Claims and that you would recuse yourself from participation if McCormick Taylor would file such a claim. Based upon the above submitted facts, you ask whether your employment with McCormick Taylor would cause you to have a conflict of interest in any matter(s) before the Board of Claims. 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. As a Member of the Board of Claims, you are a public official /public employee subject to the provisions of the Ethics Act. See, Clipper, Order 1114; Harris, Advice 01- 579; Pace, Advice 93 -617. 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. 65 Pa.C.S. §§ 1103(a), (j). (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. Gamble, 08 -577 September 26, 2008 Page 3 The following terms related to Section 1103(a) 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. 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. Gamble, 08 -577 September 26, 2008 Page 4 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. If a business with which the public official /public employee is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; Miller, Opinion 89 -024. Although a pecuniary benefit flowing solely to a governmental body would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act (see, Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso, Order 974), where a governmental body or political subdivision would be a client of the public official /public employee, or a client of a business with which the public official /public employee is associated, such client relationship itself would form the basis for a conflict of interest in matters involving the client. Cf., Kannebecker, supra; Brueninq, Advice 02 -606. In applying the above provisions of the Ethics Act to your specific inquiry, you are advised as follows. McCormick Taylor is a business with which you are associated in your capacity as an employee of McCormick Taylor. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Board of Claims that would financially impact you, McCormick Taylor, or McCormick Taylor's customer(s) /client(s), including but not limited to PennDOT and the Turnpike Commission. See, Kannebecker, supra; Miller, supra. 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 and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Act. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: As a Member of the Pennsylvania Board of Claims ( "Board of Claims "), you are a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. "McCormick Taylor," an engineering consulting firm that performs highway transportation design and planning services for the Pennsylvania Department of Transportation ( "PennDOT ") and the Pennsylvania Turnpike Commission ("Turnpike Commission "), is a business with which you are associated in your capacity as an employee of McCormick Taylor. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Board of Claims that would financially impact you, McCormick Taylor, or McCormick Taylor's customer(s)/client(s), including but not limited to PennDOT and the Turnpike Commission. 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 and 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 Gamble, 08 -577 September 26, 2008 Page 5 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