HomeMy WebLinkAbout13-513 Rhodes
ADVICE OF COUNSEL
March 6, 2013
Charles E. Rhodes
527 North Street
Berlin, PA 15530
13-513
Dear Mr. Rhodes:
This responds to your letter dated January 22, 2013 (postmarked January 26,
2013, and received January 28, 2013), 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 a member of
the board of a municipal authority, who in his private capacity is a registered land
surveyor, with regard to submitting a proposal and contracting to perform surveying
work on land owned by the municipal authority at the cost of $200.00 to the municipal
authority.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Member of the Board of the Municipal Authority of the Borough of
Berlin (“Authority”). The Authority owns more than 600 acres of land (the “Land”)
located primarily in Brothersvalley Township and Allegheny Township. The boundary
lines on some sections of the Land are not clearly identified, and the Authority Board
wishes to have those boundary lines identified and marked (hereinafter referred to as
the “Surveying Work”).
In a private capacity, you are a registered land surveyor. You are interested in
submitting a proposal to the Authority Board for you and a helper to perform the
Surveying Work on the Land at the cost of $200.00 to the Authority.
You ask whether the Ethics Act would impose any prohibitions or restrictions
upon you with regard to submitting the aforesaid proposal to the Authority Board and
contracting to perform the Surveying Work. You state that you would abstain from
voting on such proposal.
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
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March 6, 2013
Page 2
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 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
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March 6, 2013
Page 3
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.
It is noted that the above statutory definition of the term “conflict” or “conflict of
interest” contains, in pertinent part, an exclusion referred to herein as the “de minimis
exclusion.” The de minimis exclusion precludes a finding of conflict of interest as to an
action having a de minimis (insignificant) economic impact. Thus, when a matter that
would otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
The Commission has determined the applicability of the de minimis exclusion on
a case-by-case basis, considering all relevant circumstances. In the past, the
Commission has found amounts ranging from $2 to approximately $500 to be de
minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
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
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March 6, 2013
Page 4
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 to include, inter alia, an
agreement or arrangement for the acquisition, use or disposal by a political subdivision
of consulting or other services or of supplies, materials, equipment, land or other
personal or real property. 65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity
as a registered land surveyor, from submitting a proposal to the Authority Board to
perform the Surveying Work on the Land. Based upon the submitted fact that it would
cost the Authority $200.00 if you would perform the Surveying Work, you are advised
that you would not have a conflict of interest under the Ethics Act in matters before the
Authority Board pertaining to your proposal to perform the Surveying Work, see, Bixler,
supra, and that the requirements of Section 1103(f) of the Ethics Act would not have to
be observed as to your proposal to perform the Surveying Work.
It is noted that a problem could exist under the Municipality Authorities Act as to
contracting between you and the Authority. 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
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March 6, 2013
Page 5
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 Municipal Authority of the
Borough of Berlin (“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. Based
upon the submitted facts that: (1) the Authority owns more than 600 acres of land (the
“Land”) located primarily in Brothersvalley Township and Allegheny Township; (2) the
boundary lines on some sections of the Land are not clearly identified, and the Authority
Board wishes to have those boundary lines identified and marked (hereinafter referred
to as the “Surveying Work”); (3) in a private capacity, you are a registered land
surveyor; and (4) you are interested in submitting a proposal to the Authority Board for
you and a helper to perform the Surveying Work on the Land at the cost of $200.00 to
the Authority, you are advised as follows.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity
as a registered land surveyor, from submitting a proposal to the Authority Board to
perform the Surveying Work on the Land. Based upon the submitted fact that it would
cost the Authority $200.00 if you would perform the Surveying Work, you are advised
that you would not have a conflict of interest under the Ethics Act in matters before the
Authority Board pertaining to your proposal to perform the Surveying Work, and that the
requirements of Section 1103(f) of the Ethics Act would not have to be observed as to
your proposal to perform the Surveying Work. It is noted that a problem could exist
under the Municipality Authorities Act as to contracting between you and the Authority,
and therefore, it is suggested that you seek legal advice in that regard. 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