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