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HomeMy WebLinkAbout92-519Dear Mr. Williamson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 29, 1992 92 -519 Mr. Robert G. Williamson, Esquire Scanlon, Lewis & Williamson 190 Washington Street East Stroudsburg, PA 18301 -0423 Re: Conflict, Public Official /Employee, Contracting, Township Supervisor, Business With Which Associated, Subcontractor This responds to your letters of December 9, 1991 and December 12, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether a township supervisor or a business with which he is associated under the Public Official and Employee Ethics Law may engage in subcontracting under certain circumstances involving contracted work for the township. Facts: As Solicitor for Smithfield Township, Monroe County, Pennsylvania, you request the advice of the State Ethics Commission on behalf of Mr. Russell C. Albert, II, a Township Supervisor. You have submitted a two -page summary of background information relating to Mr. Albert's position as a Township Supervisor and to his private business pursuits, which two -page summary is incorporated herein by reference. Mr. Albert has been a lifetime resident of Smithfield Township. From 1977 to 1991, Mr. Albert was the owner and sole stockholder of Marshalls Creek Electric, Inc., an electrical contracting firm. In 1987, Mr. Albert was elected to the Smithfield Township Board of Supervisors where he served as the appointed Vice - Chairman in 1988 and as the appointed Chairman from 1989 through 1991. In 1989, the Board of Supervisors hired F. X. Browne Associates, ( "Browne ") consulting engineers, to provide construction review for a Township waste water treatment plant Mr. Robert G. Williamson, Esquire January 29, 1992 Page 2 and collector system, and to prepare a preliminary report for expansion of a waste water treatment plant. In June of 1990, Browne submitted a proposal for engineering services relating to design for the expansion of the treatment plant. In November of 1990, Mr. Albert began working part -time with David Strunk, P.E., who was the owner of Strunk Engineering, an engineering firm located in Smithfield Township. In January of 1991, Mr. Albert and Mr. Strunk formed an equal partnership. Strunk - Albert Engineering provides mechanical and electrical consulting engineering services in Pennsylvania and New Jersey. Also in January of 1991, the Smithfield Township Board of Supervisors executed a contract with Browne, for a specified fee, to proceed with the final design and bidding documents for the expansion of the treatment plant. In June of 1991, Mr. Albert sold Marshalls Creek Electric, Inc. and began working full -time at Strunk - Albert Engineering. Finally, in November of 1991, Browne requested a proposal for mechanical and electrical engineering services from Strunk - Albert Engineering. • The submitted facts note that Strunk - Albert Engineering's primary business is design of mechanical and electrical systems. If Strunk- Albert Engineering were to submit a proposal to Browne, it would be acting as a subcontractor to Browne for a fee. It is further noted that Mr. Albert's primary source of income is derived from Strunk - Albert Engineering. Based upon all of the above, the following questions are posed: (1) Whether the submission by Mr. Albert of a proposal for mechanical and electrical engineering services to the contractor who was hired tct design and bid the expansion of the treatment plant (Browne) constitutes a conflict under the facts as submitted? and (2) Whether Mr Albert's position as Township Supervisor prohibits Strunk - Albert Engineering from submitting a proposal to Browne? Discussion: As a Township Supervisor for Smithfield Township, Mr. Russell C. Albert, II, is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Mr. Robert G. Williamson, Esquire January 29, 1992 Page 3 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 under the Ethics Law: 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 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 publ5_c 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. "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, Mr. Robert G. Williamson, Esquire January 29, 1992 Page 4 materials, equipment, land or other personal or real property. "Contract" 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. In addition, Section 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Contracting restrictions as to public officials/ employees are provided in Section 3(f) of the Ethics Law as follows: Section 3. Restricted activities. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall eater 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 contra 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 employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of Mr. Robert G. Williamson, Esquire January 29, 1992 Page 5 competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 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 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 thl 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 yis made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the instant matter, it is noted that pursuant to Section 3(a) of the Mr. Robert G. Williamson, Esquire January 29, 1992 Page 6 Ethics Law, a public official /employee may not use the authority of office /public employment or confidential information received by holding such a public position 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. Section 3(a) restricts official rather than private conduct. Thus, in response to the first specific question which you pose as to whether Mr. Albert's submission of a proposal to Browne would constitute a conflict of interest, you are advised that Section 3(a) would not restrict ..Mr. Albert's private business dealings with Browne. However, Section 3(a) would restrict Mr. Albert's conduct as a public official. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; 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. Similarly, Section 3(a) would prohibit the use of confidential information received by holding a public office or position of public employment for such a prohibited private pecuniary benefit. The Ethics Law would restrict the use of authority of office to obtain any business in a private capacity, any utilization of confidential information gained through public position, and /or participation in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body. Brooks, Opinion 89 -023. 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 or promote such business activity. Pancoe, supra. In the event that Mr. Albert and /or Strunk - Albert Engineering has a matter pending before Smithfield Township or if Mr. Albert as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In such instances it will be necessary that Mr. Albert be removed from that process. As noted in Miller, matters which come before a public official/public employee involving his private employer and /or its clients place the public Mr. Robert G. Williamson, Esquire January 29, 1992 Page 7 official /public employee in a situation where he is faced with conflicting interests. In his capacity with a private firm, his duty is owed to the private firm and to its clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the govornmental body with the duty being owed to the public rather than to private clients. Id.; see also, Brooks, Opinion 89 -023. These same principles would equally apply to matters pending before the governmental body pertaining to a contractor with whom a public official /public employee has subcontracted. In this case, it is clear that Mr. Albert would have a conflict of interest as to any matters involving Strunk - Albert Engineering and /or the contractor, F. X. Browne Associates. Mr. Albert must divest himself from any participation of any nature whatsoever in such matters, including but not limited to voting, participating in deliberations, or otherwise using the authority of office. Furthermore, in each instance where a conflict of interest arises, Mr. Albert would be required to observe the disclosure requirements of Section 3(j) as set forth above. It is clear from the submitted facts that official action has already taken place over the years. Therefore, this Advice expressly assumes that if Mr. Albert voted or otherwise participated in the matter of the Township's contract with Browne, that such was not done as a means to create an opportunity for a subcontract between Mr. Albert and /or Strunk - Albert Engineering and Browne. It is further expressly assumed that any such voting by Mr. Albert was not based upon any understanding that he or any business with which he is associated would get a subcontract. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body, or would enter into a subcontract with any person who has been awarded a contract with that governmental body. The term "governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a Mr. Robert G. Williamson, Esquire January 29, 1992 Page 8 nation, or a political subdivision thereof or an agency performing a governmental function. Under the above quoted definition, it is clear that the governmental body with which Mr. Alberti is associated would include Smithfield Township. Accordingly,' under Section 3(f) of the Ethics Law, any contract that Mr. Albert or the business with which he is associated, would negotiate with the former governmental body would have to be awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of subcontracts. Thus, if the governmental body with which Mr. Albert is associated entered into a contract with a given individual or entity who in turn sought to enter into a subcontract with Mr. Albert, or the business with which he is associated, such subcontracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if Mr. Albert or the business with which he is associated enters into such a contract( or subcontract after complying with the restrictions of Section 3(f), Mr. Albert would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting or subcontracting to be allowed under the Ethics Law, there must be strict compliance with the provisions of Section 3(f) of the Ethics Law as outlined above. Unless the restrictions of Section 3(f) of the Ethics Law are observed, such contracting or subcontracting would be prohibited. Thus, in response to your second specific inquiry, it is clear that in this case the requirements of Section 3(f) would be applicable and must be satisfied. Lastly, 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 Act 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, either generally or with regard to contracting specifically. Conclusion: As a Township Supervisor for Smithfield Township, Mr. Russell C. Albert, II, is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mr. Albert or a business with which he is associated from entering into a subcontract with F. X. Browne, Associates, with regard to contracted work for the Township, conditioned upon the express assumptions set forth above and Mr. Robert G. Williamson, Esquire January 29, 1992 Page 9 subject to the restrictions and qualifications noted above. The restrictions of Section 3(f) of the Ethics Law set forth above are applicable and must be satisfied. 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 52.12. S ncerely, Lk\ Vincent J. Lopko Chief Counsel