HomeMy WebLinkAbout13-500 Crocamo
ADVICE OF COUNSEL
January 8, 2013
Anthony T. Crocamo
4090 Hilltop Drive
Mount Joy, PA 17552
13-500
Dear Mr. Crocamo:
This responds to your letter received November 15, 2012, 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 impose any prohibitions or restrictions upon an individual
in his capacity as a member of the board of a municipal authority if the municipal
authority would solicit and consider proposals for contracts with a business with which
the individual is employed in his private capacity.
Facts:
As a Member of the Board of the Lancaster Area Sewer Authority
(“Authority”), 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.
In a private capacity, you are employed as Manager of Corporate Marketing for
Buchart Horn, Inc. (“Buchart Horn”). You state that in your current position with Buchart
Horn, you assist with managing the branding efforts of the firm, including coordinating
the appearance and content of the firm’s website and social media outlets. You are
responsible for writing and editing various marketing documents, including the firm’s
newsletter. You help develop in-house training courses on project management, assist
technical staff in improving their presentation delivery skills, and manage an internal
corporate intranet website.
You ask whether you would be permitted to remain an active Member of the
Authority Board while the Authority would be soliciting and considering proposals for
contracts with Buchart Horn, and if so, what specific prohibitions or restrictions would be
placed upon you as an Authority Board Member because of your employment with
Buchart Horn. You state that you would remove yourself from any discussions or
deliberations on any potential contracts between the Authority and Buchart Horn and
that when discussions would be initiated on contracts which Buchart Horn might pursue,
you would exit the meeting room and not return until those discussions would have
concluded. You further state that you would abstain from any public votes regarding
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January 8, 2013
Page 2
any contracts involving Buchart Horn as the prime consultant or as a sub-consultant to
another firm.
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 Authority Board, you are a public official as that term is
defined in the Ethics Act, and therefore you are 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
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January 8, 2013
Page 3
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, 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.
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.
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
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January 8, 2013
Page 4
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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f)Contract.--
No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term “contract” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
“open and public process” be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also provides that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
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January 8, 2013
Page 5
In applying the above provisions of the Ethics Act to the submitted facts, you are
advised as follows.
Buchart Horn is a business with which you are associated in your capacity as an
employee. Section 1103(a) of the Ethics Act would not prohibit you from remaining a
Member of the Authority Board while the Authority would be soliciting and considering
proposals for contracts with Buchart Horn. However, pursuant to Section 1103(a) of the
Ethics Act, in your capacity as a Member of the Authority Board, you generally would
have a conflict of interest in matters that would financially impact you or Buchart Horn.
You specifically would have a conflict of interest in matters pertaining to bids/proposals
by Buchart Horn as well as actual or anticipated contracts involving Buchart Horn. You
would also be prohibited from using the authority of your public position, or confidential
information accessed or received as a result of being a Member of the Authority Board,
to effectuate a private pecuniary benefit to Buchart Horn through a detriment to a
business competitor. See, Pepper, Opinion 87-008.
In each instance of a conflict of interest, you 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.
The requirements of Section 1103(f) of the Ethics Act would have to be satisfied
whenever applicable. To the extent Buchart Horn would contract with the Authority, or
would subcontract with a person awarded a contract with the Authority, and the value of
Buchart Horn’s contract/subcontract would be $500 or more, the restrictions of Section
1103(f) would be applicable.
It is administratively noted that the Municipality Authorities Act provides in part:
§ 5614. Competition in award of contracts
. . . .
(e) CONFLICT OF INTEREST.--No member of the
authority or officer or employee of the authority may directly
or indirectly be a party to or be interested in any contract or
agreement with the authority if the contract or agreement
establishes liability against or indebtedness of the authority.
Any contract or agreement made in violation of this
subsection is void, and no action may be maintained on the
agreement against the authority.
53 Pa.C.S. § 5614(e).
Because this Advice may not interpret the above quoted provision of the
Municipality Authorities Act, it is suggested that you seek legal advice in that regard.
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. Specifically not addressed herein is the applicability of
the Municipality Authorities Act.
Conclusion:
As a Member of the Board of the Lancaster Area Sewer Authority
(“Authority”), 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. Buchart Horn, Inc.
(“Buchart Horn”), which employs you as Manager of Corporate Marketing, is a business
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January 8, 2013
Page 6
with which you are associated in your capacity as an employee. Section 1103(a) of the
Ethics Act would not prohibit you from remaining a Member of the Authority Board while
the Authority would be soliciting and considering proposals for contracts with Buchart
Horn. However, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a
Member of the Authority Board, you generally would have a conflict of interest in
matters that would financially impact you or Buchart Horn. You specifically would have
a conflict of interest in matters pertaining to bids/proposals by Buchart Horn as well as
actual or anticipated contracts involving Buchart Horn. You would also be prohibited
from using the authority of your public position, or confidential information accessed or
received as a result of being a Member of the Authority Board, to effectuate a private
pecuniary benefit to Buchart Horn through a detriment to a business competitor. In
each instance of a conflict of interest, you 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. The requirements of Section 1103(f) of the Ethics Act would have to
be satisfied whenever applicable. It is suggested that you seek legal advice as to the
applicability of the Municipality Authorities Act to the proposed conduct. 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