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HomeMy WebLinkAbout90-539 McDonaldMr. John B. McDonald Civil Engineer - Surveyor 21 Shannopin Drive Pittsburgh, PA 15202 -1025 Dear Mr. McDonald: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 11, 1990 90 -539 Re: Conflict, Public Official /Employee, Private Clients Plans, Municipal Engineer. This responds to your letter of March 5, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether a municipal engineer is prohibited or restricted by the Public Official and Employee Ethics Law from working on, being involved with or preparing plans in a private capacity for clients for submission to the municipal body in which he serves. Facts: As borough engineer Emsworth Borough which is a suburb of the City of Pittsburgh in Allegheny County, you note that Emsworth has little usable property left and has difficulties in meeting its yearly budget. As a result you normally do not charge for your services unless it is necessary to use a field crew. Such usually occurs when the borough receives a small grant from the county for improvements. As a general rule your yearly fees have not exceed five hundred dollars and are usually considerably less. On recent occasion you had the opportunity to lay out a small subdivision in the borough for a client which merely amounted to changing a lot line. There were no improvements necessary for the subdivision plan which met all municipal regulations for area and zoning. When you submitted the plan to council for approval, one councilmember questioned whether it was ethical on your part as municipal engineer to prepare the subdivision since you were in essence approving it. After stating that such activities occur in surrounding municipalities where municipal engineers not only lay out large subdivisions with major improvements or shopping centers, you assert that the question of the ethics has never been raised in those situations. In addition you reference one municipal engineer that recently did all of the work on a multi - million shopping mall. You express your personal view that a Mr. John B. McDonald Page 2 subdivision, shopping center or project which has a major amount of earth moving drainage, paving, etc. should not be done by the municipal engineer in that area. However, you state that engineering and surveying is part of your livelihood and if being the borough engineer would restrict you from preparing minor subdivisions then you would resign your position as municipal engineer. You conclude by requesting clarification on this matter. Discussion: As municipal engineer for Emsworth Borough, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "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. "Conflict or "conflict of interest" 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 or 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 Mr. John B. McDonald Page 3 unique to a particular public office or position of public employment. "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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit to promote such business activity. In the capacity of a public official /employee, it is clear that you must provide professional services and recommendations on an impartial basis to the municipality with regard to plans, their approval or rejection. If plans were prepared by you or the business with which you are associated that were submitted thereafter to the municipal body wherein you would have to perform review or approval functions, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process as to private plans that you or the business with which you are associated prepared for private clients. Mr. John B. McDonald Page 4 In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public official or municipal position; 3. participating in discussion, review, or recommendations on matters which directly relate to clients privately served which may have been subject to the review, approval or recommendation by the municipality and 4. publicly announcing the relationship with such private clients as to any plans or recommendations that may come before the municipality for final or further review or approval together with filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As municipal engineer for Emsworth Borough, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you or the business with which you are associated from preparing plans for clients for submission to the municipal body. However, you are subject to the prohibitions and restrictions as outlined above and must comply with the disclosure requirement of Section 3(j) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. Mr. John B. McDonald Page 5 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko, Chief Counsel