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HomeMy WebLinkAbout13-537 Garner ADVICE OF COUNSEL May 24, 2013 David G. Garner, Esquire 1954 East High Street, Suite 4 Pottstown, PA 19464 13-537 Dear Mr. Garner: This responds to your letters of March 7, 2013, and April 4, 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 the Chairman of the Board of the Pottstown Borough Authority (“Authority”) with regard to contracting with Council of the Borough of Pottstown (“Borough”) to serve as a consultant/project manager for the Borough’s Heritage Action Plan. Facts: As Solicitor for the Authority, you have been authorized by Thomas E. Carroll (“Mr. Carroll”), who is Chairman of the Authority Board, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Authority was created pursuant to the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. Members of the Authority Board are appointed by Borough Council. In July 2011, the Borough adopted a Heritage Action Plan (“Plan”) which focuses on the Schuylkill River Trail (“Trail”). The Plan identifies various ways to integrate the Trail into the community, particularly the downtown business district. In order to achieve such integration, various improvements are needed, including pathways, lighting, benches, and other amenities consistent with physical fitness and the use of the Trail. After Mr. Carroll retired from his full-time working career a few years ago, he began consulting on various types of projects, in which capacity he has assisted different organizations in obtaining grants for planning projects and for funding projects. Mr. Carroll has taken a particular interest in the development of the Plan, and he has proposed to the Borough to serve as a consultant/project manager for the Plan, with his services including the development of bidding materials and the inspection, coordination, and oversight of the work associated with the projects. You state that Borough Council would be the party contracting with Mr. Carroll and that at present, it is Garner, 13-537 May 24, 2013 Page 2 expected that funding for all the projects, including fees to be paid to Mr. Carroll, would come from grants. The Authority has had no involvement with the Plan and is not expected to have involvement with the Plan in the future. You state that at no time has Mr. Carroll had involvement in any discussions, votes, or other official actions concerning the Plan in his capacity as a Member or Chairman of the Authority Board. You further state that at the time the Plan was considered for adoption, Mr. Carroll did not have a reasonable expectation of seeking work related to the Plan. Based upon the above submitted facts, you ask whether Mr. Carroll would violate the Ethics Act if he would contract with Borough Council to serve as a consultant/project manager for the Plan. 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 Chairman of the Authority Board, Mr. Carroll 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. Garner, 13-537 May 24, 2013 Page 3 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 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. 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 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 Garner, 13-537 May 24, 2013 Page 4 reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89-002. Based upon the facts that you have submitted, you are advised that subject to the restrictions and qualifications as noted above, Section 1103(a) of the Ethics Act would not preclude Mr. Carroll from contracting with Borough Council to serve as a consultant/project manager for the Plan. 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 Borough Code or the Municipality Authorities Act. Conclusion: As Chairman of the Board of the Pottstown Borough Authority (“Authority”), Thomas E. Carroll (“Mr. Carroll”) is 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 was created pursuant to the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq.; (2) Members of the Authority Board are appointed by Council of the Borough of Pottstown (“Borough”); (3) in July 2011, the Borough adopted a Heritage Action Plan (“Plan”) which focuses on the Schuylkill River Trail (“Trail”); (4) the Plan identifies various ways to integrate the Trail into the community, particularly the downtown business district; (5) in order to achieve such integration, various improvements are needed, including pathways, lighting, benches, and other amenities consistent with physical fitness and the use of the Trail; (6) after Mr. Carroll retired from his full-time working career a few years ago, he began consulting on various types of projects, in which capacity he has assisted different organizations in obtaining grants for planning projects and for funding projects; (7) Mr. Carroll has taken a particular interest in the development of the Plan, and he has proposed to the Borough to serve as a consultant/project manager for the Plan, with his services including the development of bidding materials and the inspection, coordination, and oversight of the work associated with the projects; (8) Borough Council would be the party contracting with Mr. Carroll, and at present, it is expected that funding for all the projects, including fees to be paid to Mr. Carroll, would come from grants; (9) the Authority has had no involvement with the Plan and is not expected to have involvement with the Plan in the future; (10) at no time has Mr. Carroll had involvement in any discussions, votes, or other official actions concerning the Plan in his capacity as a Member or Chairman of the Authority Board; and (11) at the time the Plan was considered for adoption, Mr. Carroll did not have a reasonable expectation of seeking work related to the Plan, you are advised as follows. Subject to the restrictions and qualifications as noted herein, Section 1103(a) of the Ethics Act would not preclude Mr. Carroll from contracting with Borough Council to serve as a consultant/project manager for the Plan. 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. Garner, 13-537 May 24, 2013 Page 5 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