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