HomeMy WebLinkAbout18-527 LucianiPHONE: 717- 783 -1610
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To the Requester:
ADVICE OF COUNSEL
Mr. John J. Luciani, P.E.
President
First Capital Engineering
Dear Mr. Luciani:
April 26, 2018
P.L.S., S.E.O.
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.na.gov
18527
This responds to your letter received March 12, 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
F —a.C-S. § 1101 et sec.., would impose prohibitions or restrictions upon an individual with
regard to performing the duties of his position as a township commissioner, where the
individual in a private capacity is a principal and the president of a civil engineering firm
that prepares land development/subdivision plans for properties in the township.
Facts: You were recently elected as a Commissioner for a township
ownship"). In a private capacity, you are a principal and the President of a civil
engineering firm named "First Capital Engineering' the "Firm "). The Firm prepares land
development/subdivision plans for properties in the Township.
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 Township Commissioner.
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 discllosed all of the material facts.
As a Township Commissioner, you are a public official subject to the provisions
of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
Luciani, 18 -527
April 26, 2018
Page 2
§ 1103. Restricted activities
(a) Conflict of interest.- -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
Q) 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
provided 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.
"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.
Luciani, 18527
April 26, 2018
Page 3
"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 by holding such a public position for the private pecuniary benefit
of the public official/public employyee 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.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In applying the above provisions of the Ethics Act to the question presented, you
are advised as follows.
The Firm is a business with which you are associated in your capacities as a
principal and an officer (President). The Ethics Act would not prohibit the Firm from
preparing land development/subdivision plans for properties in the Township or
performing other work in the Township while you are serving as a Township
Commissioner. However, subject to the statutory exclusions to the definition of "conflict"
or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S. 1102, you would have
a conflict of interest under Section 1103(a) of the Ethics Act wit h regard to participating
in discussion(s), vote(s), or other action(s) of the Township Board of Commissioners
pertaining to matter(s) that would financially impact you or the Firm, including but not
limited to land development/subdivision plans prepared by the Firm.
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.
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: Based upon the submitted facts that: (1) you were recently elected
as a 7,o mmissioner for a township ( "Township "); (2) in a private capacity, you are a
principal and the President of a civil engineering firm named "First Capital Engineering"
Ludani, 18 -527
April 26, 2018
Page 4
(the "Firm "), and (3) the Firm prepares land development/subdivision plans for
properties in the Township, you are advised as follows.
As a Township Commissioner, 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 seq.
The Firm is a business with which you are associated in your capacities as a principal
and an officer (President). The Ethics Act would not prohibit the Firm from preparing
land development/subdivision plans for properties in the Township or performing other
work in the Township while you are serving as a Township Commissioner. However,
subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, you would have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to articipating in discussion(s),
vote(s), or other action(s) of the Township Board of commissioners pertaining to
matter(s) that would financially impact you or the Firm, including but not limited to land
development/subdivision plans prepared by the Firm.
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. 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 writingg and must be act�ualil
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.
Sincerely,
Robin M. Hittie
Chief Counsel