HomeMy WebLinkAbout18-511 ZrenchakPHONE: 717- 783 -1610
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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
March 6, 2018
To the Requester:
Mr. Michael Zrenchak
Dear Mr. Zrenchak:
FACSIMILE: 717 -787 -0806
WEBSITE: www athics.pa.00v
18-519
This responds to your letter dated January 16, 2018, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P—a—TS. § 1101 et sec.., would impose prohibitions or restrictions upon an individual with
regard to performing the duties of his newly - appointed position as a borough council
member where, as an independent contractor to the borough, the individual services
and maintains the borough sewer pump station.
Facts: You request an advisory from the Commission based on submitted facts
tT-ai may be fairly summarized as follows.
On January 2, 2018, you were appointed to fill a vacancy on Council for Liberty
Borough ( "Borough "), located in Allegheny County, Pennsylvania. In a private capacity
as an independent contractor to the Borough, you service and maintain the Borough
sewer pump station.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon you with regard to
performing the duties of your position as a Borough Council Member.
Discussion- It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the 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 en age In an
independent investigation of the facts, nor does it speculate as to facts that 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 Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Zrenchak, 18-511
arm 2018
Page 2
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 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 two 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), 0).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employyee 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.
Zrenchak, 18 -511
arc 5`; 2018
Page 3
"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.
"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.
65 Pa.C.S. § 1102.
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 6y holding such a public position for the private pecuniary benefit
of the public official/public 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 including, 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.
Add i #ionall , the disclosure requirements of Section 11030) of the Ethics Act would have
to be satis ,,the
in the event of a voting conflict.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. - -No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public empployee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
renchak, 18 -511
March , 2018
Page 4
65 Pa.C.S. § 1103(f).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
open and public process" be observed as to the contract with the governmental body.
Section 11030 of the Ethics Act also provides that the public official /public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
It is administratively noted that Section 1404 of the Borough Code provides:
"Elected and appointed borough officials and borough employees are restricted from an
interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11
(relating to ethics standards and financial disclosure)." 8 Pa.C.S. § 1404.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Section 1103(a) of the Ethics Act would not restrict you, in a private capacity as
an independent contractor to the Borough, from servicing and maintaining the Borough
sewer pump station. However, in your public capacity as a Borou h Council Member,
uld
you generally wo have a conflict of interest under Section 1103(a� of the Ethics Act in
matters perkaining to actual or anticipated contract(s) between the Borough and you.
You would also be prohibited from using the authority of your public position, or
confidential information accessed or received as a result of being a Borough Council
Member, to effectuate a private pecuniary benefit to yourself through a detriment to a
business competitor. See, Pepper, Opinion 87 -008. In addition, you generally would
have a conflict of interest with regard to voting to approve payment(s) to yourself.
In each instance of a conflict of interest, you 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.
Zrenchak, 18 -511
arc , 2018
Page 5
The restrictions and requirements of Section 1103Morof o the Ethics Act would have
to be observed as to any contract between you and the ugh that would be entered
into during your service as a Borough Council Member and that would be valued at
$500 or more. See, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223
(2011), regarding the requirements for an open and public process. ")
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion: Based upon the submitted facts that: (1) on .January 2, 2018, you
were appointed to fill a vacancy on Council for Liberty Borough ( "Borough`.), located in
Allegheny County, Pennsylvania; and (2) in a private capacity as an independent
contractor to the Borough, you service and maintain the Borough sewer pump station,
you are advised as follows.
As a Borough Council Member, you are a public official subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se .
Section 1103(a) of the Ethics Act would not restrict you, in a private capacity as an
independent contractor to the Borough, from servicing and maintaining the Borough
sewer pump station. However, in your public capacity as a Borou h Council Member,
you generally would have a conflict of interest under Section 1103(al of the Ethics Act in
matters pertaining to actual or anticipated contract(s) between the Borough and you.
You would also be prohibited from using the authority of your public position, or
confidential information accessed or received as a result of being a Borough Council
Member, to effectuate a private pecuniary benefit to yyourself through a detriment to a
business competitor. In addition, you generally would have a conflict of interest with
regard to voting to approve payment(s) to yourself.
In each instance of a conflict of interest, you 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 1103{0 of the Ethics Act would have to be satisfied in the event
of a voting conflict.
The restrictions and requirements of Section 1103Morough he Ethics Act would have
to be observed as to any contract between you and the that would be entered
into during your service as a Borough Council Member and that would be valued at
$500 or more. 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 writing and must be actuall
received at the Commission within thirtyy (34) days of the date off
Advice pursuant to 51 Pa. Code § 713.2(h). The appeal may be
renchak, 18 -511
March b, 2018
Page 6
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
4i-m'
Robin M. Hittie
Chief Counsel
If1rJ/ ,