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HomeMy WebLinkAbout19-548 CeraulPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL October 11, 2019 To the Requester: Mr. David J. Ceraul, Esquire Dear Mr. Ceraul: FACSIMILE: 717-787-0806 WEBSITE: M8TwLpthlgi7pa„jqy 19-548 This responds to your letter dated September 26 2019, 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-C-S. § 1101 et sec would impose prohibitions or restrictions upon an individual) with regard. to perf6firfiing the duties of his newly -appointed the individual position as a -township supervisor, where: (1) in a private capacity, idual has a business that is a fuel provider; (2) the ,township road crew uses the business to fuel trucks and equipment during emergencies and snowstorms; and (3) the township might wish to obtain diesel fuel, gasoline, propane, or other products from the business while the individual would be serving as a township supervisor. Facts: You have been authorized by Carl Tolino ("Mr. Tolino") to request an advig ry from, the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Tolino is a newly -appointed Supervisor for the Township of Washington Township"), located in Northampton Count, Pennsylvania. In a private capacity, Mr. Tolino has a business named "Tolino's Inc.' olino's"), which is a fuel provider. The Township road crew uses Tolino's fueling location, which is located approximately one - eighth of mile from the Township maintenance building, to fuel trucks and equipment durinp emergencies and snowstorms. The Township might wish to obtain diesel fuel, gasoline, aso Ine I propane, or other products from Tolino's while Mr. Tolino would be serving as a Township Supervisor. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Tolino with regard to performing the duties of position as a Township Supervisor, Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the EthicAct, 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 Ceraul, 19-548 0-cTo-Fer 11, 2019 Page 2 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 Zacts. As a Township Supervisor, Mr. Tolino is a public official subject to the provisions of the Ethics Act. Sections I I 03(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 recordingthe minutes of the meeting at which the vote is taken, provided that whenever a governing bod would be unable to take any action on a matter before Vbecause 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 oa political subdivision, where one member has abstained d 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 11 03(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or pblic employee of the authority of his office or employmentu or any confidential information received through his holding public office or employment for the priva 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 Ceraul, 19-548 0_56F6r 11, 2019 Page 3 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 ower 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 � organized for profit. y "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.CS. § 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 pfivate 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 off icial/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. Section 11 03(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f Contract. --No public official or �ublic employee or his spouse or child or any business in w ich 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 em�loyee shall not have any supervisory or overall responsibility for the implementation or administration of the Ceraul, 19-548 O—ctoE-6r 11, 2019 Page 4 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. 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. Section 1103(f) does no operate t© make n a n h he governmental t r co with t a ro 0 tr cti ' public official/public e hibited ' Rather - where rwis p th wh ch he, h poe 01 body he op employee„ permissible where it is otherwise 1-11 oyee, his spouse or child, or a bus ness with i is spouse r child is associated, is otherwise appropriately y contracting with the governmental body, or 0 s w r co tr ct , s pr 1h has been awarded ded a contract with the subcontracting with any person w governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and Ofic process" be observed as to the contract with the governmental body. Section 11 3(f) 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. In a% the above provisions of the Ethics Act to the instant matter, you are 011ring e advised as o ows. Tolino's is a business with which Mr. Tolino is associated in his p rivate capacity. An agreement or arrangement whereby Tolino's would provide diesel fuel gasoline, propane, or other products to the Township would constitute a "contract" as that term is defined in the Ethics Act. As long as the restrictions and requirements of the Ethics Act would be observed, the Ethics Act would not prohibit Tolino's from continuing to do business with the Township while Mr. Tolinc, would be serving as a Township Supervisor. However, in his public capacity as a Township Supervisor, Mr. Tolino generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated contract(s) between the Township and Tolino's. Mr. Tolino would also be prohibited from using the authority of his public position, or confidential information accessed or receive as a result of being a Township Supervisor, to effectuate a private pecuniary benefit to Tolino's through a detriment to a business competitor. Sep, Pveppe , Opinion 87-008. In addition, Mr. Tolino enerally would have a conflict of interest with regard to voting to approve payment(s) [o Tolino's. In each instance of a conflict of interest, Mr. Tolino would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Ceraul, 19-548 U-cTo-F6r 11, 2019 Page 5 Section 11030) of the Ethics Act would be aplicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Actwould have to be satisfied in the event of a voting conflict. The restrictions and requirements of Section 11 03(f) of the Ethics Act would have to be observed as to any contract between Tolino's and the Township that would be entered into during Mr. Tolino's service as a Township Supervisor and that would be valued at $500 or more. (Lee, Kistler v. State Ethics Commission 610 Pa. 516, 22 A.3d 223 (2011), regarding the requirements for an "open and public process.") The propriet� of the proposed conduct has only been addressed under the Ethics Act; the applicabili of any other statute, code, ordinance, regulation or other code of conduct other than he Ethics Act has not been considered in that they do not involve an inter retation of the Ethics Act. Specifically not addressed herein is the applicability of the Tlecond Class Township Code. Conclusion: Based upon the submitted facts that: (1) Carl Tolino ("Mr. Tolino") is a newly-al5pointed Supervisor for the Township of Washington ("Township"), located in Northampton County, Minnsylvania; (2 in a private capacity, Mr. Tolino has a business named 'Tolino's Inc,,' ("Tolino's" whA is a fuel provider; (3) the Township road crew uses Tolino's fueling location, ("Tolino's" is located approximately one-e hth of a mile from the Township maintenance building, to fuel trucks andequipment�Lunnemergencies obtain i and snowstorms; and (4) the Township might wish o o ain diesel fuel, gasoline, propane, or other products from Tolino's while Mr. Tolino would be serving as a Township Supervisor, you are advised as follows. As a Township Supervisor, Mr. Tolino is a public officialsubject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"),6.P a " C.S. § 1101 et seq, i Tolino's is a business with which Mr. Tolino is associated n his private capaciiffity-n agreement or arrangement whereby Tolino's would provide diesel fuel, gasoline, propane, or other products to the Township would constitute a "contract" as that term is defined in the Ethics Act. As long as the restrictions and requirements of the Ethics Act would be observed, the Ethics Act would not prohibit Tolino's from continuing to do business with the Township while Mr. Tolino would be serving as a Township Supervisor. However, in his public capacity as a Township Supervisor, Mr. Tolino generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated contract(s) between the Township and Tolino's. Mr. Tolino would also be prohibited from using the authority of his public position, or confidential information accessed or receivedasa result of being a Township Supervisor, to effectuate agrivate �pecuniary benefit to Tolino's through a detriment to a business competitor. In addition, r. Tolino generally would have a conflict of interest with regard to voting to approve payment(s) to Tolino's. In each instance of a conflict of interest, Mr. Tolino would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11 30) 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 restrictions and requirements of Section 11 03(f) of the Ethics Act would have to be observed as to any contract between Tolino's and the Township that would be entered into during Mr. Tolino's service as a Township Supervisor and that would be valued at $500 or more. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. R19-548 FE7'51-6"r 11, 2019 Page 6 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 I 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 dati-of this AZIvice "pursuant to 51 Pa. Code § 93.2(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 (TOO-) days may result in the dismissal of the appeal. Sincerely, xo-V�6' Robin M. Hittie Chief Counsel