HomeMy WebLinkAbout14-536 Coull
ADVICE OF COUNSEL
July 30, 2014
Dina Coull, Human Resources Director
The Borough of Phoenixville
Borough Hall
351 Bridge Street
Phoenixville, PA 19460
14-536
Dear Ms. Coull:
This responds to your letters dated May 7, 2014, and June 5, 2014, 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 prohibitions or restrictions upon an individual
employed as the chief automotive mechanic for a borough with regard to performing the
duties of his public position if he would accept a part-time position as a tow truck driver
for a business that the borough uses for towing services and auto body work.
Facts:
You have been authorized by Joshua Faust (“Mr. Faust”) to request an
advisory from the Pennsylvania State Ethics Commission on his behalf. You have
submitted facts that may be fairly summarized as follows.
Mr. Faust is employed as the Chief Automotive Mechanic for the Borough of
Phoenixville (“Borough”), located in Chester County, Pennsylvania. You state that as
the Chief Automotive Mechanic for the Borough, Mr. Faust manages the maintenance
and repairs of all Borough vehicles. You have submitted a copy of a job description for
the position of Chief Automotive Mechanic for the Borough, which document is
incorporated herein by reference.
Mr. Faust would like to accept an offer of part-time employment as a tow truck
driver for a business named “PeJey’s Auto Body, Incorporated” (“PeJey’s”), which is
one of two tow truck services used by the Borough to tow Borough vehicles. PeJey’s
also does body work on Borough vehicles.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon Mr. Faust with regard to
performing the duties of his position as the Chief Automotive Mechanic for the Borough
if he would accept a part-time position as a tow truck driver for PeJey’s.
Coull, 14-536
July 30, 2014
Page 2
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 the Chief Automotive Mechanic for the Borough, Mr. Faust is a public
employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa.
Code § 11.1. This conclusion is based upon the submitted job description, which when
reviewed on an objective basis, indicates clearly that the power exists to take or
recommend official action of a non-ministerial nature with respect to one or more of the
following: contracting; procurement; administering or monitoring grants or subsidies;
planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where
the economic impact is greater than de minimis on the interests of another person.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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
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,
Coull, 14-536
July 30, 2014
Page 3
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.
It is noted that Section 1103(a) of the Ethics Act does not prohibit public
officials/public employees from having outside business activities or employment.
However, subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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 could form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act would include the pursuit of a private business opportunity in the course of
public action (Metrick, Order 1037) and 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 reasonable and legitimate expectation that a business
relationship will form may support a finding of a conflict of interest (Amato, Opinion 89-
002).
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend 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.
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:
Coull, 14-536
July 30, 2014
Page 4
§ 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.
It is administratively noted that Section 1404 of the Borough Code provides:
“Elected and appointed borough officials and borough employees are restricted from an
interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11
(relating to ethics standards and financial disclosure).” 8 Pa.C.S. § 1404.
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 Mr. Faust, in his private
capacity, from accepting a part-time position as a tow truck driver for PeJey’s. If Mr.
Faust would accept such a position, PeJey’s would be considered a business with
which Mr. Faust is associated in his capacity as an employee, and subject to the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, Mr. Faust would have a conflict of interest in his capacity
as the Chief Automotive Mechanic for the Borough in matters that would financially
impact him or PeJey’s. In each instance of a conflict of interest, Mr. Faust would be
required to abstain from participation.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable.
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.
Conclusion:
As the Chief Automotive Mechanic for the Borough of Phoenixville
(“Borough”), located in Chester County, Pennsylvania, Joshua Faust (“Mr. Faust”) is a
Coull, 14-536
July 30, 2014
Page 5
public employee 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) as
the Chief Automotive Mechanic for the Borough, Mr. Faust manages the maintenance
and repairs of all Borough vehicles; (2) Mr. Faust would like to accept an offer of part-
time employment as a tow truck driver for a business named “PeJey’s Auto Body,
Incorporated” (“PeJey’s”), which is one of two tow truck services used by the Borough to
tow Borough vehicles; and (3) PeJey’s also does body work on Borough vehicles, you
are advised as follows.
Section 1103(a) of the Ethics Act would not prohibit Mr. Faust, in his private
capacity, from accepting a part-time position as a tow truck driver for PeJey’s. If Mr.
Faust would accept such a position, PeJey’s would be considered a business with
which Mr. Faust is associated in his capacity as an employee, and subject to the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, Mr. Faust would have a conflict of interest in his capacity
as the Chief Automotive Mechanic for the Borough in matters that would financially
impact him or PeJey’s. In each instance of a conflict of interest, Mr. Faust would be
required to abstain from participation. The restrictions and requirements of Section
1103(f) of the Ethics Act would have to be observed whenever applicable. 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