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HomeMy WebLinkAbout10-557 Roberts ADVICE OF COUNSEL March 25, 2010 Richard J. Roberts, Jr., Esquire Leavens & Roberts, LLP 29 East Independence Street P.O. Box 518 Shamokin, PA 17872-0518 10-557 Dear Mr. Roberts: This responds to your letter dated January 29, 2010, 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.C.S. § 1101 et seq., would present any prohibitions or restrictions upon a school director, who in a private capacity is employed by a hospital in a position in which he is responsible for the supervision of various construction projects engaged in by the hospital, when one or more firms that provide construction management services in connection with hospital projects have submitted proposals to the school district to provide construction management services for a proposed building project. Facts: You have been authorized by David Stellfox (“Mr. Stellfox”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Stellfox is a School Director for the Southern Columbia Area School District (“School District”). In a private capacity, Mr. Stellfox is employed as a Senior Project Coordinator with a hospital named “Geisinger System Services” (“Geisinger”). In the aforesaid position with Geisinger, Mr. Stellfox is responsible for the supervision of various construction projects engaged in by Geisinger. You state that Geisinger has business relationships with various firms (hereinafter referred to as “the Firms”) that provide construction management services in connection with Geisinger projects, some of which are supervised by Mr. Stellfox. You further state that one or more of the Firms have submitted proposals to the School District to provide construction management services in connection with a proposed building project. You ask whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Stellfox with regard to the aforesaid proposals that were submitted to the School District by one or more of the Firms. 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 Roberts, 10-557 March 25, 2010 Page 2 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 School Director for the School District, Mr. Stellfox is 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 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 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 Roberts, 10-557 March 25, 2010 Page 3 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, 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 of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, 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. Sections 1103(b) and 1103(c) of the Ethics Act provide: § 1103. Restricted activities (b) Seeking improper influence.-- No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. Roberts, 10-557 March 25, 2010 Page 4 (c) Accepting improper influence.-- No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). In applying the provisions of the Ethics Act to the question you have posed, it is noted that Section 1103(a) of the Ethics Act 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, 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 client(s). Miller, Opinion 89-024; Kannebecker, Opinion 92-010. 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 from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. You are advised that Geisinger is a business with which Mr. Stellfox is associated in his capacity as an employee (Senior Project Coordinator). Subject to the statutory exclusions 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, Mr. Stellfox would have a conflict of interest as a School Director in matters that would financially impact him or Geisinger. In response to your specific inquiry, you are advised as follows. To the extent that Geisinger would be a client of the Firms and the Firms would not be clients of Geisinger, the submitted fact that Geisinger has business relationships with the Firms would not in and of itself result in a conflict of interest for Mr. Stellfox under the Ethics Act as to the aforesaid proposals submitted to the School District by one or more of the Firms. Cf., Messick, Order 1155. Subject to the conditions that: (1) there would be no improper influence as prohibited by Sections 1103(b)-(c) of the Ethics Act; and (2) there would be no basis for a conflict of interest such as a private pecuniary benefit to Mr. Stellfox, a member of his immediate family, or a business with which he or a member of his immediate family is associated (including but not limited to Geisinger), the Ethics Act would not prohibit Mr. Stellfox, as a School Director, from participating in matter(s) involving the proposals to provide construction management services that were submitted to the School District by one or more of the Firms. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: As a School Director for the Southern Columbia Area School District, David Stellfox (“Mr. Stellfox”) is a public official subject to the provisions of the Roberts, 10-557 March 25, 2010 Page 5 Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) Mr. Stellfox is employed as a Senior Project Coordinator with a hospital named “Geisinger System Services” (“Geisinger”); (2) in the aforesaid position with Geisinger, Mr. Stellfox is responsible for the supervision of various construction projects engaged in by Geisinger; (3) Geisinger has business relationships with various firms (hereinafter referred to as “the Firms”) that provide construction management services in connection with Geisinger projects, some of which are supervised by Mr. Stellfox; and (4) one or more of the Firms have submitted proposals to the School District to provide construction management services in connection with a proposed building project, you are advised as follows. Geisinger is a business with which Mr. Stellfox is associated in his capacity as an employee (Senior Project Coordinator). Subject to the statutory exclusions 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, Mr. Stellfox would have a conflict of interest as a School Director in matters that would financially impact him or Geisinger. To the extent that Geisinger would be a client of the Firms and the Firms would not be clients of Geisinger, the submitted fact that Geisinger has business relationships with the Firms would not in and of itself result in a conflict of interest for Mr. Stellfox under the Ethics Act as to the aforesaid proposals submitted to the School District by one or more of the Firms. Subject to the conditions that: (1) there would be no improper influence as prohibited by Sections 1103(b)-(c) of the Ethics Act; and (2) there would be no basis for a conflict of interest such as a private pecuniary benefit to Mr. Stellfox, a member of his immediate family, or a business with which he or a member of his immediate family is associated (including but not limited to Geisinger), the Ethics Act would not prohibit Mr. Stellfox, as a School Director, from participating in matter(s) involving the proposals to provide construction management services that were submitted to the School District by one or more of the Firms. 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