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HomeMy WebLinkAbout89-516 GarvinRobert J. Garvin, Esquire 1408 Law & Finance Building Pittsburgh, PA 15219 Dear Mr. Garvin: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 14, 1989 89 -516 Re: Conflict of Interest, Planning Commissioner, Business with which he is Associated, Bidding on Contracts This responds to your letter of January 31, 1989, in which you request advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibitions upon a Planning Commissioner in bidding on projects through a business with which he is associated where one of the principals of the projects received public bids in the township. Facts: You state that you represent Henry Duckstein who is currently the Chairman of the Robinson Township Planning Commission in Allegheny County. You state that the Robinson Township Planning Commission acts in an advisory capacity to the 'township Board of Commissioners regarding site plan /building permit approvals for various commercial development within the township. You have also telephonically advised that the Planning Commission does have certain approval power subject to a veto by the township. After noting that Mr. Duckstein is the owner of a contracting company known as Duckstein Contracting, you advise that a partnership known as Park Associates is constructing a multi - million dollar regional shopping center in Robinson Township and that one of the principals of the partnership is Michael Zamaigas. You then note that in addition to the shopping center project, Mr. Zamaigas owns other commercial properties and that he has accepted public bids for construction improvements as to some of these projects. You then state that Mr. Duckstein in his capacity as the owner of Duckstein Contracting is desirous of bidding on some or all of the various construction projects proposed by Mr. Zamaigas but seeks an opinion from the Ethics Commission as to the propriety Robert J. Garvin, Esquire March 14, 1989 Page 2 of such bidding in light of his position on the Robinson Township Planning Commission. You then conclude by requesting advice as to whether Mr. Duckstein may, by open bidding, bid on any or all of the contracts offered by Michael Zamaigas for construction improvements either within or outside of Robinson Township, Allegheny County, Pennsylvania. Discussion: As a Commissioner for the Robinson Township Planning Commission, Mr. Duckstein is a public official as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code X1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). Section 2. Definitions. "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 holder of stock. 65 P.S. §402. Since Mr. Duckstein is the owner of Duckstein contracting, clearly Duckstein Contracting is a business with which he is associated as that term is defined under the Ethics Act. Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Robert J. Garvin, Esquire March 14, 1989 Page 3 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. S403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the Robert J. Garvin, Esquire March 14, 1989 Page 4 financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. Generally, the Ethics Act does not per se preclude a public official from outside business interest. Goodman, Opinion 88- 001. However, the precise question in this case is whether the Ethics Act would restrict Mr. Duckstein in his position as Planning Commission vis -a -vis any development projects wherein he or the business with which he is associated, Duckstein Contracting, would bid on a contract. In Sowers, Opinion 80 -050, the State Ethics Commission determined that a public official /employee must refrain from participating in the review or consideration of any projects or proposals of a contractor when the project or proposal is subject to the public official /employee review in either of two situations: if the public official /employee seeks or can legitimately anticipate performing services or receiving contracts from the contractor who has a proposal before the governmental body or secondly where the public official /employee has previously obtained work or a contract from the contractor and subsequently is asked to vote on matters relating to the contractor. In applying the above cited opinion to the instant matter, Mr. Duckstein would not be precluded from bidding through an open bidding process on contracts offered by Michael Zamaigas as to construction improvements outside of Robinson Township. Since Mr. Duckstein is only associated with that governmental body, the Planning Commission in Robinson Township, the Ethics Act would not restrict his bidding on projects outside of the township, as long as the Planning Commission has no authority over those projects. As to construction projects within Robinson Township, the focus of the inquiry under the Ethics Act must be from the perspective of Mr. Duckstein's conduct as a public official on the Planning Commission. Under Sowers, supra, he could not vote on any proposal or matter concerning Mr. Zamaigas within Robinson Township if he could legitimately anticipate performing services or receiving a contract from Mr. Zamaigas; secondly, Mr. Duckstein could not vote or participate on a matter involving Mr. Robert J. Garvin, Esquire March 14, 1989 Page 6 Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko, General Counsel Robert J. Garvin, Esquire March 14, 1989 Page 5 Zamaigas if he or the business with which he is associated has already received contract work from Mr. Zamaigas. In these circumstances, Mr. Duckstein must also note his abstention of public record together with the reasons for his abstention. As a corollary to Sowers, supra, if Mr. Duckstein has not or does not vote or participate on projects of Michael Zamaigas, then he would not be precluded from bidding on such project within Robinson Township. Additionally, Mr. Duckstein would not be precluded from bidding on any project of Michale Zamaigas within Robinson Township if the project was not subject to Planning Commission action. However, Mr. Duckstein may not under the Ethics Act vote on any project of Michael Zamaigas wherein he has already participated or voted as to that project or matter. Lastly, 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. Conclusion: As a Robinson Township Planning Commissioner, Mr. Duckstein is a public official subject to the provision of the Ethics Act. Under the facts and circumstances noted above, Mr. Duckstein under the Ethics Act may by open bidding, bid on contracts by Michael Zamaigas as to construction improvements outside of Robinson Township. Under Sowers, Opinion, supra, as to contracts of Michael Zamaigas within Robinson Township, Mr. Duckstein could not vote or participate on projects or proposals if he could legitimately anticipate performing services or receiving a contract from Michael Zamaigas, and secondly, Mr. Duckstein could not vote or participate on projects or proposals of Michael Zamaigas if Mr. Duckstein or the business with which he is associated had already received contract work from Michael Zamaigas in Robinson Township. In these circumstances, Mr. Duckstein must also note his abstention of public record together with the reasons for his abstention. Mr. Duckstein would not be precluded from bidding on projects of Michael Zamaigas within Robinson Township provided he did not participate or vote as to the project or if the project was not subject to Planning Commission action. However, if Mr. Duckstein did vote or participate on a matter or project of Michael Zamaigas, then he could not under the Ethics Act bid on such project. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.