Loading...
HomeMy WebLinkAbout88-628 PolencharJoseph A. Polenchar Chairman Bethlehem Township Municipal Authority Municipal Offices 2740 Fifth Street Bethlehem, PA 18017 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 16, 1988 Stephen J. Hunsberger Operations Supervisor Bethlehem Township Municipal Authority Municipal Offices 2740 Fifth Street Bethlehem, PA 18017 88 -628 Joseph K. Barner Chief of Police Bethlehem Township Police Department Municipal Offices 2740 Fifth Street Bethlehem, PA 18017 Re: Conflict of Interest, Public Officials /Employees, Gifts from Firms Associated with Municipal Authority, Baseball Tickets Dear Messrs. Polenchar, Hunsberger and Barner: This responds to your respective letters of August 12, 1988, August 17, 1988 and August 26, 1988 in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon public officials /employees from accepting gifts directly or indirectly from firms which have a contractual relationship with the municipal authority of which these public officials /employees are associated. Facts: You, Joseph K. Barner, Chief of Police, in your letter of August 12, 1988, state that Mr. Hunsberger who is a Bethlehem Township Municipal Authority "member" but not a commissioner walked into your office and asked if you would like four tickets to the Philadelphia baseball game valued at $32.00. After advising that you did not seek the tickets or anything from anyone, you state that Mr. Hunsberger who is a co- worker and long time associate offered the tickets and you accepted same. You then pose two questions under the Ethics Act: Whether the Ethics Act is implicated if you do not ask for tickets but same are offered to you by a long time associate co- worker and secondly whether the Act is implicated if you do not give the donor of the tickets any special treatment or consideration in return for the tickets. A Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 2 You, Stephen J. Hunsberger, Operation Supervisor for the Bethlehem Township Municipal Authority, hereinafter Authority, in your letter of August 17, 1988 advise that two companies have supplied Philadelphia Phillies baseball tickets to Authority employees: Palmer & Company, a public accounting firm which has served as the Authority's auditing firm since the early 1970's and secondly PSC Environmental Services which has been the Authority's consultant engineer since 1970. After noting that Palmer & Company has supplied tickets approximately three or four times a year for the past five years and that PSC Environmental Services has provided tickets once a year for the years 1986 and 1987, you state that the employees who have received these gifts range from entry -level laborers to the executive director. You then state that no employee of the Authority can vote on, appoint, reject, approve, or compensate either of the above named firms and that to the best of your knowledge no employee of the Authority has accepted anything of value in return for favoritism towards one of these firms. You then note that the Authority administrative employees in filing their Statement of Financial Interests (FIS) have not listed these gifts because they have never exceeded $15 or totaled more than $35 per year which is below the $200 reporting threshold. You then conclude by requesting advice as to whether the Authority employees have transgressed the provisions of the Ethics Act under these circumstances; in addition you request copies of the sections of the Ethics Act and additional information which would serve as a basis to instruct employees regarding the acceptance of nominal gifts such as hats, pins, tablets, meals, and similar items. You, Joseph A. Polenchar, Chairman of the Authority, state in your letter of August 26, 1988 that the firm of PCS Environmental Services, the Authority's consulting engineer has provided Philadelphia Phillies baseball tickets to board.members for the years 1986 and 1987. You then advise that the Authority members have not listed the gifts on their Statements of Financial Interests because the value of the tickets has never exceeded $15 which is below the $200 reporting threshold. In addition, you state that to the best of your knowledge no board official has accepted anything of value in return for favoritism toward PCS Environmental Services nor has a board official used his position for personal or financial gain. You conclude by requesting advice under the Ethics Act as to whether the Ethics Act is implicated under these circumstances and you further r Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 3 request that the applicable Sections be forwarded to you for review; additionally, you seek additional advice as to the acceptance of meals and memorabilia by Authority officials from sponsoring corporations as to Authority related conferences and seminars. Discussion: You, Joseph K. Barner, as Chief of Police, you Stephen J. Hunsberger, as Operating Supervisor and you, Joseph A. Polenchar as Chairman of the Authority are public officials /employees within the definition of those terms as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Preliminarily, the authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, (65 P.S. 407(9)(i) and (ii)), to those persons who request it relative to their duties. Thus, the Commission cannot issue an opinion /advice to a third party concerning the duties of some other person under the Ethics Act. Further, a reading of Sections 7(9)(i) and (ii) of the Ethics Act makes it clear that an opinion /advice may be given to a person as to a prospective course of conduct. If the activity, in question, has already occurred,the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. Therefore, for purposes of this advice, any baseball tickets that you have accepted in the past will not be addressed in this advice since the advice /opinion mechanism is advisory as to only future prospective conduct. Secondly, based upon the above, the advice may be only issued as to you three individuals relative to your duties under 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 Mr. Joseph A.Polenchar- Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 4 for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official 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 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, Pa. Commw. Ct. , 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 e, 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 he influenced thereby. It is assumed such a situation does not Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph R. Barner September 16, 1988 Page 5 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. §403(d). Fritzinqer, 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 85 -010. As to the specific issue of the receipt of gifts by public officials /employees, the Ethics Act does not per se prohibit the receipt of such gifts. 65 P.S. S403. However, the Ethics Act would be implicated if the public officials /employees accept gifts from firms or individuals who have dealings with their governmental body. Thus, the Ethics Commission found in Feller, Order 576 -R that a township supervisor technically violated Section 3(a) of the Ethics Act when he accepted game tickets after he voted to award a franchise to the firm that subsequently donated the tickets to him. Similarly, in Volpe and Smith, Orders 578 -R and 579 -R, the Commission found that two township supervisors who accepted an all expense paid trip from a developer and then voted to approve the developer's plans before the township violated Sections 3(a) and 3(b) of the Ethics Act. Similarly, travel and expenses for public officials by_firms or corporations with which the public officials are involved in Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 6 their official capacity, must be handled by the governmental body and cannot be made directly to the public officials /employees. See Daqhir, Opinion 86 -012; Miller, Opinion 83 -006; See also Favinqer, Order 29. The above provisions of law and prior determinations of the Commission will now be applied to your respective inquiries. As to you Mr. Barner, although the Ethics Act would not prohibit you from receiving a gift from a "long time associate co- worker ", Section 3(d) of the Ethics Act would then prohibit you from being involved in your position as Chief of Police in an official capacity with the donor of the gift. For example, in the event that the donor of the gift would become the subject of an investigation, you could not conduct, supervise or participate in that investigation in light of the fact that you received gift(s) from that individual. The theory for the above is that if you accept a gift and then have to deal with the donor of that gift in your capacity as police chief, your acceptance of that gift might affect your objectivity in performing your duties as to that individual, that is, you would have a conflict or the appearance of a conflict of interest. In that instance, you could not participate in your position as Chief of Police in any matter relating to that individual. As to your advice request, Mr. Hunsberger, the above discussion would have application to you since you would be receiving a gift from firm(s) which have a contractual relationship with the Authority. Although it is true that you do not vote on, appoint, reject, approve, or compensate the above firms, it is equally true that there could be instances where you would be involved with the firm in terms of either reviewing their work or passing upon or approving what they had submitted or prepared. Therefore, because of your involvement as a public employee with the firm that has a contractual relationship with the Authority, you should not under Sections 3(a) and 3(d) of the Ethics Act accept game tickets from those firms. As to the acceptance of "nominal" gifts from donors, as noted above, the Ethics Act would not preclude you from receiving the gifts. However, if the donors then had cetain involvement with the Authority, you could not participate in those matters concerning the donors and would have to note that publicly. As to you Mr. Polenchar, you have stated that you have a longstanding professional relationship with the PSC Environmental Services firm. Since you as one member of the Authority would be reappointing or negotiating as to the salary or other matters with this firm, it would be therefore inappropriate for you to Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 7 accept these baseball tickets from the firm. Therefore under Sections 3(a) and 3(d) of the Ethics Act, you should not accept gifts or baseball tickets from firms that are on contract with the Authority to provide consultant services. As to the matter of the acceptance of meals or memorabilia from sponsoring firms at Authority related conferences and seminars, as noted above, there is no per se prohibition from accepting meals or memorabilia from sponsoring corporations; however, in the event that those corporations would have some matter before the Authority, you could then neither participate nor vote under Sections 3(a) and 3(d) of the Ethics Act. Turning to the matter of the FIS reporting requirements, Section 5(b)(6) of the Ethics Act provides: Section 5. Statement of financial interests. (6) The name and address of any person from whom a gift or gifts valued in the aggregate at $200 or more were received, and the value and the circumstances of each gift. However, this provision shall not be applicable to gifts received from the individual's spouse, parents, parents by marriage, siblings, children or grandchildren. 65 P.S. §405(b)(6). The above provision of law provides that as long as the value of the gifts in aggregate are less than $200, then such gifts need not be reported. However, you should be also advised that a public official /employee may report the value of gifts even if they are less than $200 and even though the Act does not require same. Thus, although there is no reporting requirement unless the gifts are $200 or more in aggregate, a public official /employee may voluntarily report gifts under $200 threshold amount. 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. As per your requests, copies of the Ethics Act and Guide to the Ethics Act are enclosed. Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 8 Conclusion: As a Chief of Police, Operations Supervisor and Chairman of the Bethlehem Township Municipal Authority, Joseph K. Barner, Stephen J. Hunsberger and Joseph A. Polenchar are public officials /employees respectively and are subject to the provisions of the State Ethics Act. As to Mr. Barner, subject to the qualifications and limitations noted above, you may accept gifts from associate co- workers but then you could not participate or be involved in any matter relating to that individual in your official capacity should such a situation arise. As to Mr. Hunsberger, under Section 3(a) and 3(d) of the Ethics Act you should not accept gifts from a firm which has a contractual relationship with your governmental body. You would not be precluded from receiving gifts from other donors, but if those donors had an involvement with the Authority, you could not participate in those matters. As to you Mr. Polenchar, you similarly should not accept gifts from a firm which has a contractual relationship with your governmental body. Additionally, the Ethics Act would not preclude the acceptance of meals or memorabilia from sponsoring corporations at Authority related conferences subject to the limitations and qualifications noted above; in the event that you do accept such gifts, then you could not participate or vote in the event that those corporations had matters before the Authority. Additionally, the Ethics Act requires that only gifts valued in the aggregate of $200 or more be reported although you have the option of voluntarily listing any gifts that are under that threshold amount. 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. This letter is a public record and will be made available as such. Mr. Joseph A.Polenchar Mr. Stephen J. Hunsberger Mr. Joseph K. Barner September 16, 1988 Page 9 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