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HomeMy WebLinkAbout89-591 BrazilDear Mr. Brazil: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1989 Mr. John J. Brazil, Jr. 89 -591 Law Offices Brazil & Brazil Connell Building, Suite 827 Scranton, PA 18503 Re: Conflict, Public Employee, Borough Engineer, Borough, Plans, Representation, Private Clients. This responds to your letter of October 13, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough engineer from representing private individuals as to plans which would be submitted to the borough. Facts: You are the solicitor for Moosic Borough and on behalf of the borough engineer, you inquire as to the propriety of the borough engineer being hired by a private individual for the purpose of preparing engineering plans which would have to be submitted to the borough zoning board for approval as to the land subdivision. The normal procedure in such cases is for the borough engineer to review all subdivision plans. In light of the above, you inquire as to whether the borough engineer may represent this individual and if so would the borough engineer be precluded from participating or reviewing these plans of the borough which would necessitate the borough either having the planning commission or an outside engineer review the plans for the borough. Discussion: As a borough engineer for Moosic, the individual is a "public employee" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S1.1. Section 3(a) of the Ethics Act provides: Page ,2 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the instant matter, the borough engineer has the duty to review plans that are submitted for proposed land subdivisions. In such a situation, if the borough engineer would be hired by the client to prepare such engineering plans, a conflict would exist. He as Page 3 the employee of this individual would be serving that private client; in his capacity as borough engineer he would have the primary duty to determine whether the plans are adequate and proper and whether it is in the best interest of the borough to recommend such plans for approval. In such a situation his duty to his private client would conflict with his public duty to the borough. Therefore, although the Ethics Law would not prohibit the borough engineer from outside employment, the Law would prohibit him from using the authority of office to approve, review, recommend or play any role in the approval of the plans in relation to any borough action involving his client or the subdivision plan in which he was involved. In such a situation he would have to divest himself from any participation in the borough's actions. Such a result is necessitated by the fact that his actions would result in the securing of a private pecuniary benefit for himself for the work that he did for these private clients. Additionally, Section 3(a) would prohibit him from using confidential information for similar purposes. In addition he may not use any of the borough resources or facilities in order to further his private engineering business including but not limited to the use of telephones, staff equipment, research materials, personnel, or for any time he is being paid as a public employee. In light of the fact that the borough engineer would have a conflict as to any plans that he did for private clients, Section 3(j) of the Ethics Law would require him to publically announce and disclose his conflict as well as file a written memorandum with the secretary responsible for recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 is the applicability of the Borough Code. Conclusion: As a the borough engineer for Moosic, the individual is a "public employee" subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit the borough engineer from preparing the plans for private clients, Section 3(a) would prohibit him from participating in any fashion regarding any such plans that are submitted to the borough. In addition, he may not use any borough facilities for his private interests. Finally, Section 3(j) of the Ethics Law would require him to publically announce his conflict and file a written memorandum with the secretary recording the minutes. Lastly, the propreity of the proposed conduct has only been addressed under the Ethics Law. Page 4 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 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 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 Dopko, Chief Counsel