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HomeMy WebLinkAbout88-661 AmatoJames D. Amato, Esquire Three Gateway Center 15th Floor, North Wing Pittsburgh, PA 15222 Dear Mr. Amato: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1988 88 -661 Re: Conflict of Interest, Township Commissi Dne:e , Voting on Projects Reviewed by Planning Commission, Pecei »ra o Contract Work from Subcontractors as to Approved Projects This responds to your letters of October 6, and Novesabor 2 1988 in which you requested advice from the State tthicb Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon a first class township commissioner in voting o-?. projects reviewed by the planning commission when a given project developer may hire a general contractor who would hire subcontractors who would contract with a business with which the commissioner is associated. Facts: You advise that you represent Ar. Joseph Bianco who is Commissioner in Robinson Township. After noting that the five menber township board has the duty to review, approve or disapprove projects which have been presented to the Planning Commission, you state that Mr. Bianco has been employed since 1977 by Beaver Valley Builders Supply Company as a sales manager. Yow1 indicate that his duties consist of bidding on jobs which are presented by various subcontractors but not developers. You state that. Mr. k3L:nco is merely a salaried employee of his company and receives no commission on the sales and is not a shareholder in said company. When a given project is approved by the Commissioners upon recommendation of the Planning Commission, you advise that the process involves the hiring by the developer of a general contractor who in ur,, hires subcontractors who may contract with Mr. Bianco in his capacity as sales manager for a bid. You then recite a chronolcy as to what occu:fred at Jaras D. .Amato, Esquire D3 amber 8, 1088 Pge 2 meetings of the Board of Commissioners between December 17, 1988 and June 30, 1988 which is incorporated herein by reference. You state that Mr. Bianco's votes in those meetings were not deciding votes or any given motion involving issues regarding projects. Ater asserting that there will be other development projects in the future, you request advice as to what Mr. Bianco should do in a, i:roving these projects which may ultimately be bid upon by Mr. Bianco's employer. Specifically, you ask whether Mr. Bianco ;,could be able to continue to vote on future projects in light of the fact that his employer may at some time bid at a subcontract level on those projects which Mr. Bianco would vote to approve. Discussion: As a Commissioner for Robinson Township, Mr. Bianco i.: a public official as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. 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). 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. S402. 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 whici 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 p..rt of his compensation is prohibited by James D. Amato, Esquire December 8, 1988 Page 3 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 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 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. As to your specific inquiry, it is first noted that Beaver Valley Builders Supply Company is a business with which Mr. Bianco is associated since he is an employee of that company. The question now becomes whether Mr. Bianco as first class township comm!_ssioner may vote on approving development projects which have been initially reviewed by the Planning Commission when there is a possibility that the business with which he is associated may receive contract work from a subcontractor as to one of those projects. The issue that you have raised has already been addressed by the Commission in Sowers, Opinion 80- 050. In the cited opinion, the Commission determined that a James D. Amato, Esquirc December 8, 1988 Page 4 public official /employee must refrain from participating in projects or proposals of a contractor when the project or proposal is subject to the public employees /officials review in either of two situations: if the official /employee seeks or can legitimately anticipate performing services or receiving a contract from the contractor or secondly where the public official /employee has obtained work or a contract from the contractor and subsequently is asked to vote on matters relating to the contractor which arose after the public official /employee obtained the work, services or contract from the contractor. Restating the above in part, a public official should not vote on matters where he may reasonably anticipate that he or a business with which he is associated could receive contract or subcontract work relative to the matter on which he has voted. See Earnest, Order 265; See also Brown, Order 584 -R. In applying the above precepts to this case, it first must be noted that the actions which Mr. Bianco has already taken may not be addressed in this advice. Section 7(9)(i)(ii) of the Ethic; Act makes it clear that the advisory opinion mechanism is only available as to prospective conduct. Since the activities in this case as to Mr. Bianco's voting occurred between December, 1987 and June, 1988, no advisory opinion may be issued as to that conduct. As to any future actions by Mr. Bianco, as noted above, Sowers, Opinion requires that he should abstain from voting and note his public abstention of record together with the reason for his abstention as to any projects in which he can legitimately anticipate that the business with which he is associated could be awarded contract work relative to a given project that would come before the township for a vote. 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 Commissioner for Robinson Township Mr. Bianco is a public official subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act, Mr. Bianco may not vote on any projects wherein he or the business with which he is associated may legitimately anticipate receiving contract work as to that project; in addition he may not vote on matters which arise after he or the business with which he is associated has obtained contract work from the proponent of that matter. Sowers, supra. In these instances he 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. James D. Amato, Esquire C. ,ember 8, 1988 Par- 5 Pursuant to Section 7(9)(ii), this Advice is a complete_ defense in an-' enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceding, providing the requestor has disclosed truthful). 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 challonge 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 3 Dopko, General Counsel