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HomeMy WebLinkAbout12-518 Smith ADVICE OF COUNSEL March 22, 2012 A. Gregg Smith, Dirt and Gravel Road Specialist Armstrong Conservation District Armsdale Administration Building 124 Armsdale Road, Suite B-2 Kittanning, PA 16201-3738 12-518 Dear Mr. Smith: This responds to your letter dated January 31, 2012, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., an individual who is both: (1) employed as a Dirt and Gravel Road Specialist for a conservation district, in which position he is primarily responsible for administering the conservation district’s dirt and gravel road program; and (2) a supervisor for a township that currently has several dirt and gravel road worksites that may be eligible for funding through the conservation district’s dirt and gravel road program, would have a conflict of interest in either of his aforesaid capacities with regard to matters involving participation by the township in the conservation district’s dirt and gravel road program, and if so, what abstentions and/or disclosures would be required of him in either capacity. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are currently employed as a Dirt and Gravel Road Specialist with the Armstrong Conservation District (“District”) on a part-time basis, in which capacity you are primarily responsible for administering the District’s Dirt and Gravel Road Program (the “District Road Program”). You have submitted a copy of a position description for your position as a Dirt and Gravel Road Specialist with the District, which document is incorporated herein by reference. The District Quality Assurance Board (“QAB”) is an advisory committee of the District that makes funding recommendations to the Conservation District Board of Directors (“District Board”) on the allocation of Dirt and Gravel Roads Funds received by the District through the State Conservation Commission. You state that in your capacity as a Dirt and Gravel Road Specialist, you are the person with the primary responsibility for evaluating all applications in conjunction with municipal officials, developing a scope Smith, 12-518 March 22, 2012 Page 2 of work for selected projects, and overseeing/administering the projects for conformity to the local QAB policies and the guidelines established by the State Conservation Commission. You meet on an as-requested basis with municipal officials to assist them in preparing, revising, and implementing their applications for dirt and gravel road funding, and you provide input to the QAB by assisting it in prioritizing and making recommendations for funding to the District Board. You state that you do not make funding decisions for the District Road Program and that all such decisions are made exclusively by the District Board. You prepare contracts, scopes of work or work plans, and all other required attachments for the review and approval of the District Manager. You are not authorized to execute contracts on behalf of the District, but you are authorized to determine contract compliance by municipal officials in certain respects. In November 2011, you were elected as a Supervisor for Rayburn Township (“Township”), located in Armstrong County, Pennsylvania, and you took office in January 2012. You state that as a Township Supervisor, you are not employed by the Township to work on the roads as a road worker. You state that the Township currently does not have any applications for funding, contracts, or active projects with the District pursuant to the District Road Program. However, the Township currently has several dirt and gravel road worksites that may be eligible for funding through the District Road Program. You state that because of your training, you are currently the only elected or appointed Township official who may be eligible to apply to the District for funding pursuant to the District Road Program. Based upon the above submitted facts, you seek guidance as to whether, in your capacity as a Dirt and Gravel Road Specialist or in your capacity as a Township Supervisor, you would have a conflict of interest with regard to matter(s) involving participation by the Township in the District Road Program, and if so, what disclosures and/or abstentions would be required of you in either capacity. 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 Dirt and Gravel Road Specialist for the District, you are a public employee subject to the Ethics Act. As a Township Supervisor, you are a public official subject to 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 Smith, 12-518 March 22, 2012 Page 3 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 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. 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. 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. Smith, 12-518 March 22, 2012 Page 4 In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Having established the above general principles, you are advised as follows. You would not have a conflict of interest under Section 1103(a) of the Ethics Act: (1) in your capacity as a Dirt and Gravel Road Specialist for the District in matters that would financially impact the Township but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated; or (2) in your capacity as a Township Supervisor in matters that would financially impact the District but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity--such as the Township or the District--would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. Therefore, as to each of your public capacities--that is, as a Dirt and Gravel Road Specialist for the District or as a Township Supervisor--absent some basis for a conflict of interest in that capacity such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) involving participation by the Township in the District Road Program, and you would not be required to abstain or make disclosures pursuant to Section 1103(j) of the Ethics Act. 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. Conclusion: As a Dirt and Gravel Road Specialist for the Armstrong Conservation District (“District”), you are a public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. As a Supervisor for Rayburn Township (“Township”), you are a public official subject to the Ethics Act. You would not have a conflict of interest under Section 1103(a) of the Ethics Act: (1) in your capacity as a Dirt and Gravel Road Specialist for the District in matters that would financially impact the Township but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated; or (2) in your capacity as a Township Supervisor in matters that would financially impact the District but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. As to each of your public capacities--that is, as a Dirt and Gravel Road Specialist for the District or as a Township Supervisor--absent some basis for a conflict of interest in that capacity such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) involving participation by the Township in the District’s Dirt and Gravel Road Program, and you would not be required to abstain or make disclosures pursuant to 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 Smith, 12-518 March 22, 2012 Page 5 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