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HomeMy WebLinkAbout17-556 Schimizzi-CarolineSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800 -932 -0936 ADVICE OF COUNSEL August S, 2017 To the Requester: Mr. Richard W. Schimizzi, Esquire Schimizzi Law LLC Dear Mr. Schimizzi: 17 -556 This responds to your emails of July 11, 2017, and July 12, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Mies Act ( "Ethics Act'), 65 Pa.C.S. § 1103(a), an individual serving as both: (1) a Member of the Board of Directors of the Western Westmoreland Municipal Authority; and (2) the Manager of the Penn Township Sewage Authority, would have a conflict of interest in either of his aforesaid capacities with regard to participating in discussions, negotiations, or votes on an amendment to the service agreement between the Western Westmoreland Municipal Authority and its member municipalities, where such amendment may impose obligations upon the Penn Township Sewage Authority as to the construction of certain sanitary sewer infrastructure. Facts: You have been authorized by Stanley J. Caroline ( "Mr. Caroline ") to request an advisory from the Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Western Westmoreland Municipal Authority ( "Municipal Authority ") is a joint municipal authority that was created by six municipalities (the "Member Municipalities ") and their respective sanitary sewer authorities. The Municipal Authority provides sanitary sewage transportation and treatment services to portions of the three townships and all areas within the three boroughs that constitute the Member Municipalities. Each Member Municipality or its sewer authority owns and is responsible for the construction, installation, and maintenance of a sanitary sewer collection system. The Municipal Authority and the Member Municipalities and their respective sanitary sewer authorities entered into a service agreement (the "Service Agreement ") that sets forth the Municipal Authority's services to the Member Municipalities as well as the responsibilities or obligations of the Municipal Authority and the Member Municipalities, The Service Agreement includes a provision stating that the Municipal Authority will be the exclusive provider of sanitary sewage transportation and treatment services in the areas in each Member Municipality that are within the Municipal Authority's service area. FAX, (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsL tate.pa.us TJ STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800 -932 -0936 ADVICE OF COUNSEL August S, 2017 To the Requester: Mr. Richard W. Schimizzi, Esquire Schimizzi Law LLC Dear Mr. Schimizzi: 17 -556 This responds to your emails of July 11, 2017, and July 12, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Mies Act ( "Ethics Act'), 65 Pa.C.S. § 1103(a), an individual serving as both: (1) a Member of the Board of Directors of the Western Westmoreland Municipal Authority; and (2) the Manager of the Penn Township Sewage Authority, would have a conflict of interest in either of his aforesaid capacities with regard to participating in discussions, negotiations, or votes on an amendment to the service agreement between the Western Westmoreland Municipal Authority and its member municipalities, where such amendment may impose obligations upon the Penn Township Sewage Authority as to the construction of certain sanitary sewer infrastructure. Facts: You have been authorized by Stanley J. Caroline ( "Mr. Caroline ") to request an advisory from the Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Western Westmoreland Municipal Authority ( "Municipal Authority ") is a joint municipal authority that was created by six municipalities (the "Member Municipalities ") and their respective sanitary sewer authorities. The Municipal Authority provides sanitary sewage transportation and treatment services to portions of the three townships and all areas within the three boroughs that constitute the Member Municipalities. Each Member Municipality or its sewer authority owns and is responsible for the construction, installation, and maintenance of a sanitary sewer collection system. The Municipal Authority and the Member Municipalities and their respective sanitary sewer authorities entered into a service agreement (the "Service Agreement ") that sets forth the Municipal Authority's services to the Member Municipalities as well as the responsibilities or obligations of the Municipal Authority and the Member Municipalities, The Service Agreement includes a provision stating that the Municipal Authority will be the exclusive provider of sanitary sewage transportation and treatment services in the areas in each Member Municipality that are within the Municipal Authority's service area. FAX, (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsL tate.pa.us Schimizzi /Caroline, 17 -556 August 8, 20 7 Page 2 Penn Township is one of the Member Municipalities. The Penn Township Sewage Authority provides sanitary sewer service to various communities located within Penn Township, The Penn Township Sewage Authority does not own, operate, or maintain a treatment facility. Sewage collected in the Penn Township Sewage Authority sanitary sewer system is transported to certain outside treatment facilities, including the Municipal Authority treatment plant. A certain area in Penn Township, hereinafter referred to as the " Unserved Penn Township Area," is located within the Municipal Authority's service area but is not currently capable of receiving sanitary sewer treatment service at the Municipal Authority treatment plant due to a lack of sanitary sewer infrastructure. The Franklin Township Municipal Sewage Authority could provide sanitary sewer treatment service to the Unserved Penn Township. Area. The Franklin Township Municipal Sewage Authority is not a party to the Service Agreement, and an amendment to the Service Agreement would be required in order for the Franklin Township Municipal Sewage Authority to provide sanitary sewer treatment service to the Unserved Penn Township Area. Any such amendment to the Service Agreement would require the consent of all parties to the Service Agreement. You state that it is anticipated that the discussions, negotiations, and votes on any such amendment to the Service Agreement may include financial terms and conditions and impose obligations upon the Penn Township Sewage Authority to construct the sanitary sewer infrastructure needed to eventually provide for the transportation of sanitary sewage from the Unserved Penn Township Area to the Municipal Authority treatment plant. Mr. Caroline is a Member of the Board of Directors ( "Board ") of the Municipal Authority. Mr. Caroline was appointed to the Municipal Authority Board by Penn Township. Mr. Caroline is employed as the Manager of the Penn Township Sewage Authority. You state that in his aforesaid employment capacity, Mr. Caroline is responsible for taking or recommending official action of a nonministerial nature with regard to the overall operations of the Penn Township Sewage Authority, including contracting and procurement actions. Based upon the above submitted facts, you ask whether Mr. Caroline, in his capacity as a Member of the Municipal Authority Board or in his capacity as the Manager of the Penn Township Sewage Authority, would have a conflict of interest with regard to participating in discussions, negotiations, or votes on an amendment to the Service Agreement that would allow the Franklin Township Municipal Sewage Authority to provide sanitary sewer treatment service to the Unserved Penn Township Area. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 thaf 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 a Member of the Municipal Authority Board, Mr. Caroline is a public official subject to the provisions of the Ethics Act. As the Manager of the Penn Township Sewage Authority, Mr. Caroline is a public employee subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: Schimizzi /Caroline, 17 -556 August 8, 20 7 Page 3 § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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 pprovided 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 wo 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 related to Section 1103(x) 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. Schimizzi /Caroline, 17 -556 August 8, 20 7 Page 4 "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, 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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 9102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office /employment or confidential information received byy holding such a public position for the private pecuniary benefit of the public officiallpublic 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 includin , 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Mr. Caroline would not have a conflict of interest under Section 1103(a) of the Ethics Act either in his capacity as a Member of the Municipal Authority Board or in his capacity as the Manager of the Penn Township Sewage Authority in matter(s) that would financially impact the Municipal Authority or the Penn Township Sewage Authority but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing solely to a governmental entity - -such as the Municipal Authority or the Penn Township Sewage Authority- -would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01 -005; McCarrier /Anderson, Opinion 98 -008; Warso, Order 974. Therefore, as to each of Mr. Caroline's public capacities - -that is, as a Member of the Municipal Authority Board or as the Manager of the Penn Township Sewage Authority -- absent some basis for a conflict of interest such as a private pecuniary benefit for Mr. Caroline, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Caroline would not have a conflict of interest with regard to participating in discussion(s), negotiation(s), or vote(s) on an amendment to the Service Agreement that would allow the Franklin Township Municipal Sewage Authority to provide sanitary sewer treatment service to the Unserved Penn Township Area. Schimizzi /Caroline, 17 -556 August 8, 2017 Page 5 The proprietyy 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 Municipality Authorities Act. Conclusion: Based upon the submitted facts that: (1) the Western e��reland Municipal Authority ("Municipal Authority ") is a joint municipal authority that was created by six municipalities (the "Member Municipalities ") and their respective sanitary sewer authorities; (2) the Municipal Authority provides sanitary sewage transportation and treatment services to portions of the three townships and all areas within the three boroughs that constitute the Member Municipalities; (3) each Member Municipality or its sewer authority owns and is responsible for the construction, installation, and maintenance of a sanitary sewer collection system; (4) the Municipal Authority and the Member Municipalities and their respective sanitary sewer authorities entered into a service agreement (the "Service Agreement ") that sets forth the Municipal Authority's services to the Member Municipalities as well as the responsibilities or obligations of the Municipal Authority and the Member Municipalities; (5) the Service Agreement includes a provision stating that the Municipal Authority will be the exclusive provider of sanitary sewage transportation and treatment services in the areas in each Member Municipality that are within the Municipal Authority's service area; (6) Penn Township is one of the Member Municipalities; (7) the Penn Township Sewage Authority provides sanitary sewer service to various communities located within Penn Township; (8) the Penn Township Sewage Authority does not own, operate, or maintain a treatment facility; (9) sewage collected in the Penn Township Sewage Authority sanitary sewer system is transported to certain outside treatment facilities, including the Municipal Authority treatment plant; (10) a certain area in Penn Township, hereinafter referred to as the " Unserved Penn Township Area," is located within the Municipal Authority's service area but is not currently capable of receiving sanitary sewer treatment service at the Municipal Authority treatment plant due to a lack of sanitary sewer infrastructure; (11) the Franklin Township Municipal Sewage Authority could provide sanitary sewer treatment service to the Unserved Penn Township Area; (12) the Franklin Township Municipal Sewage Authority is not a party to the Service Agreement, and an amendment to the Service Agreement would be requ.red in order for the Franklin Township Municipal Sewage Authority to provide sanitary sewer treatment service to the Unserved Penn Township Area; (13) any such amendment to the Service Agreement would require the consent of all parties to the Service Agreement; (14) it is anticipated that the discussions, negotiations, and votes on any such amendment to the Service Agreement may include financial terms and conditions and impose obligations upon the Penn Township Sewage Authority to construct the sanitary sewer infrastructure needed to eventually provide for the transportation of sanitary sewage from the Unserved Penn Township Area to the Municipal Authority treatment plant; 15) Stanley J. Caroline ( "Mr. Caroline ") is a Member of the Board of Directors ( "Board' of the Municipal Authority; (16) Mr. Caroline was appointed to the Municipal Authority Board by Penn Township; (17) Mr. Caroline is employed as the Manager of the Penn Township, Sewage Authority; and (18) in his aforesaid employment capacity, Mr. Caroline is responsible for taking or recommending official action of a nonministerial nature with regard to the overall operations of the Penn Township Sewage Authority, including contracting and procurement actions, you are advised as follows. As a Member of the Municipal Authority Board, Mr. Caroline is a ublic official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. & 1101 et sect. As the Manager of the Penn Township Sewage Authority, Mr. Caroline is a public employee subject to the provisions of the Ethics Act. Mr. Caroline would not have a conflict of interest under Section 1103(a) of the Ethics Act either in his capacity as a Member of the Municipal Authority Board or in his capacity as the Manager of the Penn Township Sewage Authority in matter(s) that would financially Schimizzi /Caroline, 17 -556 August 8, 2017 Page 6 impact the Municipal Authority or the Penn Township Sewage Authority but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing solely to a governmental entity- -such as the Municipal Authority or the Penn Township Sewage Authority - -would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Therefore, as to each of Mr. Caroline's public capacities - -that is, as a Member of the Municipal Authority Board or as the Manager of the Penn Township Sewage Authority -- absent some basis for a conflict of interest such as a private pecuniary benefit for Mr. Caroline, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Caroline would not have a conflict of interest with regard to participating in discussion(s), negotiation(s), or vote(s) on an amendment to the Service Agreement that would allow the Franklin Township Municipal Sewage Authority to provide sanitary sewer treatment service to the Unserved Penn Township Area. 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 writinggrr and must be actu�all 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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal Sincere) , obin M. Hittie , "-- Chief Counsel