Loading...
HomeMy WebLinkAbout92-515-SDear Mr. Biondo: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 6, 1992 Dennis R. Biondo, Esquire 92 -515 -S Jack Hickton & Associates 701 Washington Road Mt. Lebanon, PA 15228 -1909 Re: Conflict, Public Official /Employee, Borough Council Member, Business with which Associated, Clients, Supplemental Advice. This responds to your letter of March 19, 1992, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member employed by a firm which serves private clients, including the borough engineer, which do business with the borough and receive regular payments from the borough, with regard to the borough's payment of bills to those clients, and with regard to the authorization of work pertaining to a road repair /reconstruction project which would result in paid work for the borough engineer. Facts: Following a letter of request of December 9, 1991, Advice of Counsel 92 -515 was issued which is incorporated herein by reference. That Advice concluded that in his capacity as a Borough Council Member for the Borough of Castle Shannon in Allegheny County, Pennsylvania, Mr. Regis J. Zezulewicz, Jr. would have a conflict of interest as to any matter involving his private employer, Coordinated Group of Companies, Inc. (CGC), and /or any of its clients, including but not limited to L. Robert Kimball & Associates (the Borough Engineer), HDH Group, Inc., and Blue Cross /Blue Shield. You were advised that in each instance of a conflict of interest, Mr. Zezulewicz would be required to abstain from any participation of any nature whatsoever and to publicly announce his abstention and the reasons for same, both orally and in a written memorandum filed with the secretary recording the minutes. Finally, the Advice concluded that Mr. Zezulewicz could not use any Borough facilities to further the business interests of CGC and /or any of its clients. By letter dated March 19, 1992, you have requested a Dennis R. Biondo, Esquire May 6, 1992 Page 2 supplemental advisory regarding Advice of Counsel 92 -515. Your supplementary request notes that since the issuance of Advice 92 -515, several issues have arisen related to specific factual circumstances, causing confusion and uncertainty for Mr. Zezulewicz and other Council Members. The Borough is in the midst of an extensive road reconstruction project of major importance to the Borough, involving most of the roads within the Borough. You state that input, deliberation and action will be "expected" of all Council Members. The project will require an assessment of the condition of all Borough roads by the Borough Engineer, L. Robert Kimball & Associates (LRKA) with LRKA then making reports and recommendations to Council for repairs and /or reconstruction of those roads. Council expects to deliberate and act to do such repair/ reconstruction work by advertising for bids from construction firms to do the required work and by entering into contracts for that purpose. Throughout this process, Members of Council will receive information from LRKA and in all likelihood will request the Engineer to provide additional information, recommendations, and the like, to prepare plans and specifications for the repair /reconstruction work, and to oversee and inspect that work as it is being performed by the entities which are contracted to do the work. Throughout this process, the Engineer will be requested to perform certain work for the Borough for which it will submit a bill and expect payment. You note that LRKA was appointed as the Borough Engineer by Council at the beginning of this year and a contract was entered into between the Borough and LRKA specifying the methods and rates of payments, although you have not provided a copy of said contract to this Commission. You state that two questions arise. First, you ask whether Mr. Zezulewicz is required to abstain from voting or participating in deliberations regarding the road repair /reconstruction project merely because every time any such work is authorized, LRKA will be involved in preparing specifications, inspections, and the like. As to this inquiry, you urge that the prior Advice not be interpreted to prevent Mr. Zezulewicz from participating in such matters. You state that the primary purpose of such action would be unrelated to LRKA and the engineering involvement would only be incidental to the main work being performed, specifically road repair /reconstruction. You state that the same issue arises with many other projects which the Borough or any other municipality would undertake. Many, if not all, of the public works projects of any municipality require the involvement of the municipal engineer. To prevent Mr. Zezulewicz from acting in these circumstances, you state, would effectively prevent him from representing his constituency, the residents of Castle Shannon, with regard to vital and important issues within the Borough. Dennis R. Biondo, Esquire May 6, 1992 Page 3 Your second inquiry involves the payment of bills. On a monthly basis, the Borough receives a bill for services rendered by LRRA. Borough Council is required to vote to pay all bills. LRRA was appointed as Borough Engineer at the beginning of the year, with Mr. Zezulewicz abstaining, and a contract was entered into detailing the rate of compensation. Therefore, you state that action of Council in authorizing payment of the bills, including those of LRRA, although necessary, is rather ministerial as opposed to an action requiring an exercise of discretion on the part of the individual Council Members. The work has already been performed by LRRA at a rate of compensation that was previously established by contract. You state that as a practical matter, the only action taken by individual Members of Council with regard to the payment of the bills is to question the accuracy or necessity of the work performed. It is your opinion that to require Mr. Zezulewicz to abstain from that action would severely restrict his ability to perform one of the functions which he was elected to do, specifically to protect the municipal finances. You state that although you have framed the above questions as relating to LRKA, the same questions are presented with regard to HDH Group, Inc. (HDH), and to a lesser extent, Blue Cross /Blue Shield. When an issue arises regarding insurance coverage or liability, HDH might be requested to provide information or recommendations although, generally, the only payments made to HDH are for liability insurance coverage. The decision to purchase insurance from HDH would have previously been made with only periodic payment of premiums throughout the term of the policy purchased from HDH. You state that a broad reading of Advice 92- 515 would require that Mr. Zezulewicz abstain from voting to "pay the bills" when such a bill is included among them. Likewise, with regard to Blue Cross /Blue Shield, you state that the decision to provide medical benefits coverage for Borough employees through the Municipal Employers Insurance Trust and Blue Cross /Blue Shield is made annually or less often. The action of paying that bill on a monthly basis would only be pro forma action, you believe, unless there was a question regarding that particular bill. In summarizing your supplemental request, you state that Advice 92 -515 obviously would prevent Mr. Zezulewicz from participating in deliberations or voting to appoint LRRA or to purchase insurance coverage from HDH or Blue Cross /Blue Shield. However, you state that there is some question as to whether the Advice would prevent Mr. Zezulewicz from participating in deliberations or acting on matters under the circumstances which you have set forth. Based upon all of the above, you request a supplemental Dennis R. Biondo, Esquire May 6, 1992 Page 4 advisory. Discussion: As a Borough Council Member for the Borough of Castle Shannon ( "Borough ") in Allegheny County, Pennsylvania, Mr. Regis J. Zezulewicz, Jr. is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. The general provisions and restrictions of the Ethics Law applicable to your supplemental inquiry have been fully set forth in Advice 92 -515 and will not be repeated, but rather, the focus of this supplemental Advice shall be directed toward the specific issues which you have raised. It is initially noted that the contract between the Borough and LRKA has not been provided to this Commission, nor has there been any explanation of the compensation arrangement for the services of the Borough Engineer. This sort of arrangement varies among municipalities. There may be a set salary encompassing certain pre- authorized types of services, with extra services to be additionally-authorized and compensated. On the other hand, it may be that each item of work performed by the Borough Engineer must be authorized by Council and is billed on an item -by -item basis. First, you have asked whether Mr. Zezulewicz would be required to abstain from voting or participating in deliberations regarding the road repair /reconstruction project because every time any such work is authorized, LRKA would be involved in preparing specifications, inspections, and the like. The key to your question lies in determining which "use of authority of office" authorizes work to be done by the Borough Engineer. Mr. Zezulewicz would have a conflict of interest in any matter before Council which would authorize work to be done by LRKA. Thus, if a matter before Council pertains purely to the road repair /reconstruction work, and any related work by LRKA has been pre- authorized by the Borough's contract with LRKA, there would not be a conflict of interest for Mr. Zezulewicz, but if the matter in any way includes authorization of LRKA to perform work for a fee, the conflict would arise. As to your second inquiry, involving the payment of bills, it must initially be noted that you have erroneously characterized Advice 92 -515 as precluding a vote to "pay the bills" when they include a bill as to which there is a conflict. The restrictions by the Ethics Law would apply only as to the bills for which there is a conflict. It appears to be solely the choice of the Borough to consider the bills together. As to LRKA, HDH and /or Blue Cross /Blue Shield, prior precedent of the Commission which would continue to apply under Act 9 of 1989 Dennis R. Biondo, Esquire May 6, 1992 Page 5 holds that if payment of bills submitted by a public official/ public employee's employer amounts to concurrence and payment of a pre- fixed, undisputed amount, the public official /public employee may vote to pay the employer's bill as presented, but if such payment would be subject to the discretion of the public official /public employee or otherwise subject to question, dispute or adjustment, there would be a conflict of interest and the public official /public employee would be required to abstain from any participation in the decision to pay the amount in question. See, Krushinski, Order No. 168 at 4 (and authorities cited therein). These same principles would likewise apply to situations where the conflict of interest would arise as to paying bills to the employer's client. Thus, if the Borough's payment of a bill to LRKA, HDH and /or Blue Cross /Blue Shield is pre -fixed and undisputed, Mr. Zezulewicz could participate in the vote. On the other hand, if the payment would be subject to his discretion as a Council Member or otherwise subject to question, dispute or adjustment, Mr. Zezulewicz could not participate. Although you characterize the payment of such bills to be ministerial, you have acknowledged that at least as to LRKA, the Council's action with regard to payment of bills would still be to question the accuracy or necessity of the work performed, which would be sufficient for the conflict of interest to arise for Mr. Zezulewicz. 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 Borough Code. Conclusion: As a Borough Council Member for the Borough of Castle Shannon in Allegheny County, Pennsylvania, Mr. Regis J. Zezulewicz, Jr. is a public official subject to the provisions of the Ethics Law. The restrictions set forth in Advice 92 -515 and above must be followed. Mr. Zezulewicz would have a conflict of interest as to any matter authorizing work to be performed by the Borough Engineer for a fee. Mr. Zezulewicz would not have a conflict of interest as to matters resulting automatically in work for the Borough Engineer pursuant to predetermined contractual duties of the Borough Engineer. Mr. Zezulewicz may vote with regard to the Borough's payment of bills to his employer's clients if such bills are of a pre - fixed, undisputed amount and would not be subject to his discretion as a Council Member or otherwise subject to question, dispute or adjustment. 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 Dennis R. Biondo, Esquire May 6, 1992 Page 6 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 52.12. ncerely, Vincen J. Dopko Chief Counsel