Loading...
HomeMy WebLinkAbout89-555 RogersSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1989 Carl R. Rogers 89 -555 Borough Manager Municipal Building Seventh and Sarah Streets Stroudsburg, PA 18360 Re: Conflict of Interest, Public Official, Borough Councilmember, Employee of Contractor, Voting to Reimburse Property Owners for Work Done by Contractor Dear Mr. Rogers: This responds to you letter of May 26, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a borough councilmember from voting to approve payments to a contractor, by whom he is employed, regarding the reimbursement to home owners for costs relative to reconnecting sewer laterals. Facts: As borough manager for the Borough of Stroudsburg, you request an advisory opinion as to a member of council who is in the employ of a contractor who performs reconnection work to sewer laterals of property owners who then apply to borough council for reimbursement of their costs. You note that the borough was undertaking a sewer separation project whereby storm water will be completely separate from sanitary water. Because of the foregoing, you indicate that all buildings in the combined sewer area must connect their sewer laterals to the recently constructed sanitary sewer line. After noting that a past action of borough council has determined that property owners should not have to bear the cost of reconnecting their buildings, you indicate that council determined that each property owner would be responsible for hiring and overseeing a contractor to perform the work; the property owner would then submit an invoice for reimbursement by the borough. As a consequence, you advise that the current council must administer a program of reimbursing the property owners for their cost of reconnecting to the sewer laterals. You state that the current council is presently Carl R. Rogers June 15, 1989 Page 2 finalizing guidelines for the program which will include the approval of a maximum cost per work item. You note that a current member of borough council is employed by a plumbing contractor who is interested in performing work for the affected property owners. After advising that this member of council was not on the board when it decided to reimburse the property owners, you note that the council member will have access to and participate in the decision to establish maximum cost as well as to vote on the approval of bills for payment which could include reimbursement to home owners for whom his employer worked. You conclude by requesting advise as to whether a conflict would exist for this council member's employer to bid upon and receive sewer lateral work. Discussion: As a council member for Borough of Stroudsburg, the individual is a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. As such, his conduct is subject to the provisions of the Ethics Act. 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 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Carl R. Rogers June 15, 1989 Page 3 Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. The term business with which he is associated is defined under the Ethics Act as follows: 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. 5402. Since the councilmember is in the employe of the contractor, it is clear that the contractor's business is a business with which the councilmember is associated as that term is defined under the Ethics Act. 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) Carl R. Rogers June 15, 1989 Page 4 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. 5403(d). Fritzincrer, 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 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. In applying the above provisions of the Ethics Act to the instant matter, the general rule is that a public official /employee is not precluded per se from outside business interests. Goodman, Opinion 88 -001. However, the public official /employee may not use public office or confidential information as a means in whole or part to advance his private business interests, either directly or even indirectly. Welz, Opinion 86 -001. Therefore, although the Ethics Act will not preclude the councilmember from working in the employ of the contractor who would be doing some of the reconstruction work as to the sewer laterals, that councilmember could not use public office or confidential information in an attempt to have the property owners enter into contracts with the contractor for whom he is working. It would not appear that the councilmember would be precluded in participation in the establishment of maximum cost since at that point in time, and it is expressly assumed, there would be no identifiable contracts between his employer- contractor and given property owners who would be reconnecting their sewer laterals. Amato, Opinion 89 -002. Turning to the matter of the actual voting to approve the payment of bills, the councilmember would not be precluded from voting provided these were routine, non - contested items. See Krusinski, Order 168. Similarly, the councilmember would not be precluded from voting to approve payment of bills to contractors other than the contractor for whom he works. However, as to those cases involving the approval of payment of bills for work Carl R. Rogers June 15, 1989 Page 5 done by his contractor which are not routine and are contested in some fashion, he may not vote, must note his abstention of public record together with the reason for his abstention. 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 councilmember, the individual is a public official subject to the provisions of the State Ethics Act. The Ethics Act would prohibit the councilmember for using public office or confidential information as a means of obtaining contracts for his employer- contractor with property owners who would be required to reconnect their sewer laterals and submit invoices to the borough for reimbursement. The Ethics Act would not restrict the councilmember from voting to approve payment of bills from contractors other than the contractor for whom he worked. Additionally, the councilmember could approve routine non - contested payment of bills from his contractor - employer as to reconnecting sewer laterals. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent JV Dopko, General Counsel