Loading...
HomeMy WebLinkAbout92-503Rinaldo A. DePaola, Esquire Griffin, Dawsey and DePaola, P.C. 101 Main Street Towanda, Pennsylvania 18848 Re: Conflict, Public Official /Employee, Building Code Inspector /Administrator /Electrical Code Enforcement Officer, Council of Government, Joint Building Code Enforcement Program, Township, Independent Contractor, Service Connection Electrical Inspector. Dear Mr. DePaola: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 10, 1992 92 -503 This responds to your letter of November 13, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon Mr. Charles Hartmann as a Building Code Inspector /Administrator /Electrical Code Enforcement Officer employed by the Western Bradford County Council of Government where Mr. Hartmann also works as an independent contractor as a service connection electrical inspector for an underwriting firm. Facts: You request an advisory from this Commission on behalf of Mr. Charles Hartmann of Towanda Borough, Bradford County, Pennsylvania, on matters pertaining to Mr. Hartmann which were raised in a certain prior letter to this Commission dated October 2, 1991, from Jonathan Foster, Esquire, Solicitor for North Towanda Township. Mr. Foster's letter and its enclosure, a copy of Resolution No. 91 -10 of the North Towanda Township Supervisors, are incorporated herein by reference. Mr. Rinaldo A. DePaola January 10, 1992 Page 2 The submitted facts are as follows. North Towanda Township has participated in a Council of Government Joint Building Code Enforcement Program under the Western Bradford County Council of Government. As a result, the individual employed by the Council of Government (COG) as building code inspector and administrator is responsible for enforcing BOCA and associated building and electrical codes in the Township. The individual hired for this position; Mr. Charles Hartmann, also works as an independent contractor as a service connection electrical inspector for an underwriting firm, which requires him to inspect the service connections for electrical services. The North Towanda Township Supervisors are concerned that in Mr. Hartmann's dual role as Electrical Code Enforcement Officer and as an independent service connection electrical inspector, he is in a position to reject the work of his competitors and therefore to gain an economic advantage over the other electrical inspectors in the area. The Township has therefore requested that Mr. Hartmann not perform any of his service connection electrical inspections in the Township when he is enforcing the electrical code. An additional concern has been raised that as Building Code Officer, all individuals requesting new construction and new electrical services must apply to Mr. Hartmann first for a building permit. It has been suggested that this gives Mr. Hartmann the advantage of soliciting the service connection inspection work for all applications before his competitors are even aware of the new project. It is specifically inquired as to whether the above concerns are warranted as well as whether there have been any similar situations presented to this Commission involving inspectors who have dual capacities as independent contractors in related building code fields. Resolution No. 91 -10 of the North Towanda Township Supervisors which was submitted and incorporated herein by reference, was adopted on June 25, 1991. It appears to restrict the COG code enforcement individual from performing certain electrical inspection work due to a possible conflict of interest. Discussion: It is initially noted that your inquiry may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Mr. Rinaldo A. DePaola January 10, 1992 Page 3 Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. As Building Code Inspector /Administrator /Electrical Code Enforcement Officer for the Western Bradford County Council of Government (COG), Mr. Charles Hartmann is a public employee as that term is defined under the Ethics Law, and hence he is 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 of his immediate family or a business with Mr. Rinaldo A. DePaola January 10, 1992 Page 4 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 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 �r 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. Section 3 (j) of the Ethics Law provides as follows: Section 3. Restricted Activities. (j) 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 Mr. Rinaldo A. DePaola January 10, 1992 Page 5 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 P.S. S403(j). In applying the above provisions of the Ethics Law to the facts which you have submitted, it is generally noted that the Ethics :Law would not restrict a COG building code inspector /administrator /electrical code enforcement officer from also working as an independent contractor and /or for a private firm unless that employment was adverse to, or inherently incompatible with his official duties in the above capacities. Smith, Opinion 89 -010. Conflicting or adverse interests exist where a public official /employee represents two competing interests simultaneously. In the instant matter, Mr. Charles Hartmann also works as an independent contractor as a service connection electrical inspector for an underwriting firm, which requires him to inspect the service connection for electrical services in a private rather than a public capacity. The submitted facts indicate that in his capacity as a public employee, Mr. Hartmann would be in a position to reject the work of his competitors and therefore, gain an economic advantage over the other electrical inspectors in the area. The submitted facts also indicate that all individuals requesting new construction and new electrical services must first apply to Mr. Hartmann for a building permit, which it is indicated may give him the advantage of soliciting the service connection inspection work for all applications before his competing inspectors are even aware of the new project. Mr. Rinaldo A. DePaola January 10, 1992 Page 6 Although the submitted facts do not expressly so state, it would also appear that as the COG Building Code Inspector /Administrator /Electrical Code Enforcement Officer, Mr. Hartmann could also be in a position where, in the course of his official duties, he would be required to inspect electrical services which he would already have inspected in his private capacity' as a service connection electrical inspector for the underwriting firm. The above facts clearly present situations where Mr. Hartmann would have a conflict of interest. Under Section 3(a) of the Ethics Law, a public official /public employee may not use the authority of public office /employment or confidential information received by being in such a public position for the private pecuniary benefit of himself, any member of his immediate family, or any business with which he or a member of his immediate family is associated. It has long been and continues to be recognized by this Commission that a public official /public employee may not use his public office /position to negatively impact upon his competitors and thus, derive a personal financial benefit. See, Pepper, Opinion 87 -008. Thus, it is clear that Mr. Hartmann could not use the authority of his public position or confidential information received through his public employment to the detriment of his competitors thereby obtaining a private pecuniary benefit. The Commission has further noted that persons who wish to have the approval of the governmental body would probably favor having a permit submitted to a firm with which the reviewing public official /public employee was associated, knowing that individual in his or her capacity as a public official /public employee might then be in a position to approve the work. Miller, Opinion 89 -024. Mr. Hartmann may not use his authority to issue permits or otherwise use the authority of his public position or confidential information received by being in a public position for a private pecuniary benefit for himself and /or the underwriting firm, such as by soliciting work to be performed in a private capacity. But furthermore, Section 3(a) of the Ethics Law would preclude Mr. Hartmann from inspecting in his public capacity the very same projects /sites he inspected in his private capacity. This would constitute reviewing his own work, consisting of his prior inspection on behalf of the underwriting firm. In Miller, Opinion 89 -024, and in Ferrero, Order No. 720, the Commission Mr. Rinaldo A. DePaola January 10, 1992 Page 7 specifically found such circumstances to present a conflict of interest. While performing such electrical inspection work for a private employer and /or private clients, it is an individual's duty to insure that the work performed will pass review by the appropriate public officials /employees. However, in issuing permits and conducting electrical inspections in the capacity of a public official /public employee, the individual's primary duty is to determine that a permit or work is adequate and whether it is in the best interest of the governmental body to grant the permit or to approve the work. This duty is to the public rather than to private clients. See, Miller, supra, at 3. Under Section 3 (a) of the Ethics Law, this Commission would only have jurisdiction over Mr. Hartmann in his capacity as a public employee. Thus, this Commission would not have the jurisdictional authority to issue an Advice restricting Mr. Hartmann with regard to performing private electrical inspections. However, -Mr. Hartmann may clearly not act in his public capacity as Building. Code Inspector /Administrator/ Electrical Code Enforcement Officer for the COG to issue permits and /or to conduct electrical inspections as to projects /sites where he has performed private services. In each instance of a conflict of interest, Mr. Hartmann must abstain from any official action or participation of any nature whatsoever and must comply with the disclosure requirements of Section 3 (j) by filing a written memorandum with his supervisor setting forth his abstention and the reasons for same. 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 Second Class Township Code. Conclusion: As the Building Code Inspector /Administrator/ Electrical Code Enforcement Officer for the Western Bradford County Council of Government, Mr. Charles Hartmann is a public employee subject to the provisions of the Ethics Law. Mr. Hartmann may not use the authority of his public employment to negatively affect those who compete with him in his private capacity as a service connection electrical inspector. Mr. Mr. Rinaldo A. DePaola January 10, 1992 Page 8 Hartmann may not use the authority of his public employment to solicit work in a private capacity. Mr. Hartmann may not act in his public capacity to issue permits and /or to conduct electrical inspections as to projects /sites where he has performed private services. In each instance of a conflict of interest, Mr. Hartmann must observe the disclosure requirements of Section 3(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. 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 S2.12. ncerely, rs S. Vincent J. Dopko Chief Counsel