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HomeMy WebLinkAbout18-553 MaattaPHONE: 717 -783 -1610 TOLL FREE: 1- 800- 932 -0936 ADVICE OF COUNSEL September 11, 2018 To the Requester: Mr, Timothy M. Maatta, Esquire Dear Mr. Maatta: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 18 -553 This responds to your letters dated July 16, 2018 August 3, 2018, and August 8, 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 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual who is employed witTl an engineering firm that: (1) is the appointed professional service provider for zoning, code enforcement, sewage enforcement, and flood plain management for a township; and (2) reviews building permits under the Uniform Construction Code for the township, with regard to reviewing and approving building plans or performing other services for the township pertaining to a developer that would be represented by the individual and /or the engineering firm. Facts: You have been authorized by Frank E. Monack "Mr. Monack" to request an allvisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Monack is employed with an engineering firm named "K2 Engineering, Inc." {the "Firm " ),. In March 2018, the Board of Commissioners of Rostraver Township ( "Township' , Westmoreland County, Pennsylvania, appointed the Firm as the professions service provider for Township zoning, code enforcement, sewage enforcement, and flood plain management. You state that the Firm assigned its Township appointment to Mr. Monack, who has been performing the Firm's work for the Township since March 8, 2018. Mr. Monack has been appointed as a Member of the Rostraver Township Planning Agency. Mr. Monack also reviews building permits under the Uniform Construction Code for the Township. Mr. Monack and /or the Firm may be engaged to represent developers that are interested in developing areas of the Township through initial construction or reconstruction. Maatta, 18 -553 September 11, 2018 Page 2 The narrow question that is posed by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Monack with regard to reviewing and approving building plans under the Uniform Construction Code or performing other services for the Township pertaining to a developer that would be represented by Mr. Monack and/or the Firm. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) o the Eth ics 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 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 disc osed all of the material facts. Mr. Monack, in one or more of his capacities with the Township, is a public official subject to the provisions of the Ethics Act. 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 Maatta, 18 -553 September 11, 2018 Page 3 "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. "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 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 includingg, 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 1103{1) 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 Mr. Monack is associated in his capacity as an employee. The Ethics Act would not prohibit Mr. Monack --in his capacity as a Firm employee -- and/or the Firm from representing developer(s) interested in developing areas of the Township. 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. 5 1102, Mr. Monack would have a conflict of interest under Section 1103(a) of the Ethics Act with Maatta, 18 -553 September 11, 2018 Page 4 regard to reviewing and approving building plans under the Uniform Construction Code —or erforming other service(s) as a public official for the Township — pertaining to developers) represented by Mr. Monack and/or the Firm. In each instance of a conflict of interest, Mr. Monack 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 f 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 First Class Township Code. Conclusion: Based upon the submitted facts that: (1 Frank E. Monack "Mr. onac< is em loyed with an engineering firm named "K2 Engineering Inc." (the "Firm "); (2) in March 2018, the Board of Commissioners of Rostraver Township ( "Township ") Westmoreland County, Pennsylvania, appointed the Firm as the professional service provider for Township zoning, code enforcement, sewage enforcement, and flood plain management; (3) the Firm assigned its Township appointment to Mr. Monack, who has been performing the Firm's work for the Township since March 8, 2018; (4) Mr. Monack has been appointed as a Member of the Rostraver Township Planning Agency; (5) Mr. Monack also reviews building permits under the Uniform Construction Code for the Township; and (6) Mr. Monack and/or the Firm may be engaged to represent developers that are interested in developing areas of the Township through initial construction or reconstruction, you are advised as follows. Mr. Monack, in one or more of his capacities with the Township, is 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 Mr. Monack is associated in his capacity as an employee. The Ethics Act would not prohibit Mr. Monack —in his capacity as a Firm employee — and /or the Firm from representing developer(s) interested in developing areas of the Township. However, subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set north in the Ethics Act, 65 Pa.C.S. § 1102, Mr. Monack would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to reviewing and approving building plans under the Uniform Construction Code —or performing other service(s as a public official for the Township — pertaining to developer(s) represented by Mr. Monack and/or the Firm. In each instance of a conflict of interest, Mr. Monack 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. Maatta, 18 -553 September 11, 2018 Page 5 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 actuall received at the Commission within thirty (30) days of the date of is 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 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, t Robin M. ittie Chief Counsel