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HomeMy WebLinkAbout13-540 Means ADVICE OF COUNSEL June 4, 2013 Charles M. Means, Esquire Goehring Rutter & Boehm Frick Building th 437 Grant Street, 14 Floor Pittsburgh, PA 15219 13-540 Dear Mr. Means: This responds to your letter of April 17, 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 township supervisor with regard to renting unused garage space in a township municipal building to work on robotic equipment. Facts: As Solicitor for Kilbuck Township (“Township”), you have been authorized by Township Supervisor Valois (“Mr. Valois”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Township owns a municipal building that has unused garage space (the “Garage Space”) for which the Township has no use. Mr. Valois recently expressed an interest in renting the Garage Space to work on robotic equipment. The Township Board of Supervisors (“Board of Supervisors”) consists of three Members. On March 26, 2013, at the Township’s first public meeting after Mr. Valois had expressed interest in renting the Garage Space, an executive session was held by the other two Township Supervisors (hereinafter referred to as “the Other Two Supervisors”) and you to discuss procedures applicable to the potential rental of the Garage Space, and a public discussion regarding the possibility of such rental followed. The Other Two Supervisors would like to consider renting the space to Mr. Valois or any other third party for an appropriate use in order to generate revenue for the Township from the Garage Space. You state that the Other Two Supervisors are prepared to authorize the following steps to be taken in order to solicit and consider proposals from prospective renters who may be interested in the Garage Space: Means, 13-540 June 4, 2013 Page 2 (1) Public notice will be given, by way of a newspaper advertisement, to inform the public of the availability of the Garage Space for rental and the general terms concerning such rental, including permissible and impermissible uses, and to invite prospective renters to submit a proposal by a stated deadline; (2) Once proposals from any prospective renters are obtained, the Other Two Supervisors will review them without Mr. Valois; (3) At a public meeting, any proposals received will be made public and, after discussion of the proposals in the public meeting, an agreement to enter into a lease may be approved by the Board of Supervisors, providing that any Supervisor desiring to rent the Garage Space may not participate in either the vote to award such a lease or in any executive session held with regard to same and shall file a written abstention for the record; (4) One of the Other Two Supervisors not seeking to rent the Garage Space will be designated as the Supervisor responsible for implementation and administration of the lease, and if Mr. Valois’ proposal is accepted, he may not have any responsibility for administration or implementation of the lease or thereafter take part in discussions or actions of the remaining Supervisors regarding rental payments, compliance with lease terms, extension of the lease, and the like; and (5) If the Board of Supervisors wishes to accept the proposal of Mr. Valois for renting the Garage Space, such acceptance will be conditional upon the issuance of an Advice of Counsel from the State Ethics Commission finding that renting of the Garage Space by Mr. Valois would not be a conflict of interest under the Ethics Act. You state that the Township is unable to determine at this time whether the value of a lease of the Garage Space to Mr. Valois would exceed $500.00. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions or limitations upon Mr. Valois with regard to renting the Garage Space from the Township. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. As a Township Supervisor, Mr. Valois is a public official subject to the provisions of the Ethics Act. Means, 13-540 June 4, 2013 Page 3 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 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 Means, 13-540 June 4, 2013 Page 4 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. 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 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). Means, 13-540 June 4, 2013 Page 5 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. Having established the above general principles, you are advised as follows. An agreement or arrangement whereby Mr. Valois would rent the Garage Space from the Township would constitute a “contract” as that term is defined in the Ethics Act. Cf., Rubenstein, Opinion 01-007; Staniszewski, Advice 07-571. As long as the restrictions and requirements of the Ethics Act would be observed, the Ethics Act would not prohibit Mr. Valois—in his private capacity—from renting the Garage Space from the Township. However, unless the de minimis exclusion would be applicable, Mr. Valois—in his public capacity—would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated contract(s) between him and the Township for rental of the Garage Space, and Mr. Valois would also be prohibited from using the authority of his public position, or confidential information accessed or received as a result of being a Township Supervisor, to effectuate a private pecuniary benefit to himself through a detriment to a competitor for rental of the Garage Space. See, Pepper, Opinion 87-008. In each instance of a conflict of interest, Mr. Valois 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 restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between Mr. Valois and the Township for rental of the Garage Space that would be valued at $500 or more. Means, 13-540 June 4, 2013 Page 6 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 Second Class Township Code. Conclusion: As a Supervisor for Kilbuck Township (“Township”), Mr. Valois 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 Township owns a municipal building that has unused garage space (the “Garage Space”) for which the Township has no use; (2) Mr. Valois recently expressed an interest in renting the Garage Space to work on robotic equipment; (3) the Township Board of Supervisors consists of three Members; (4) on March 26, 2013, at the Township’s first public meeting after Mr. Valois had expressed interest in renting the Garage Space, an executive session was held by the other two Township Supervisors (hereinafter referred to as “the Other Two Supervisors”) and you to discuss procedures applicable to the potential rental of the Garage Space, and a public discussion regarding the possibility of such rental followed; (5) the Other Two Supervisors would like to consider renting the space to Mr. Valois or any other third party for an appropriate use in order to generate revenue for the Township from the Garage Space; (6) the Other Two Supervisors are prepared to authorize certain steps enumerated herein to be taken in order to solicit and consider proposals from prospective renters who may be interested in the Garage Space; and (7) the Township is unable to determine at this time whether the value of a lease of the Garage Space to Mr. Valois would exceed $500.00, you are advised as follows. An agreement or arrangement whereby Mr. Valois would rent the Garage Space from the Township would constitute a “contract” as that term is defined in the Ethics Act. As long as the restrictions and requirements of the Ethics Act would be observed, the Ethics Act would not prohibit Mr. Valois—in his private capacity—from renting the Garage Space from the Township. However, unless the de minimis exclusion to the definition of “conflict” or “conflict of interest” set forth at Section 1102 of the Ethics Act would be applicable, Mr. Valois—in his public capacity—would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated contract(s) between him and the Township for rental of the Garage Space, and Mr. Valois would also be prohibited from using the authority of his public position, or confidential information accessed or received as a result of being a Township Supervisor, to effectuate a private pecuniary benefit to himself through a detriment to a competitor for rental of the Garage Space. In each instance of a conflict of interest, Mr. Valois 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 restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between Mr. Valois and the Township for rental of the Garage Space that would be valued at $500 or more. 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 . Means, 13-540 June 4, 2013 Page 7 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