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HomeMy WebLinkAbout92-529Mr. Robert M. Mitchell Chief Fire Inspector /Fire Marshall 92 -529 Township of Millcreek 3608 West 26th Street, P.O. Box 8268 Erie, Pennsylvania 16505 -0268 Re: Conflict, Public Official /Employee, Private Employment or Business, Chief Fire Inspector /Fire Marshall, Emergency Management Coordinator, Township, Use of Authority of Office or Employment, State Certified Instructor, Consultant. Dear Mr. Mitchell: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 7, 1992 This responds to your letter of December 19, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents . prohibition or restrictions upon a s chief fire inspector /fire marshal and emergency management coordinator who also works as a private consultant te various subjects of fire fighting and hazardous materials, where the scope of his official duties may require enforcing fire code violations against his private clients. Facts: As the Chief Fire Inspector /Fire Marshal and Emergency Management Coordinator for the Township of Millcreek in Erie County, Pennsylvania, you have been advised by the Township's Solicitor to request an advisory from this Commission. You note that you are commissioned by the Board of Supervisors, and that you are therefore able to write summary Fire Code violations on state non - traffic citations, in which you cite the Township Ordinance. You are also a state certified instructor on fire service subjects as well as in the field of hazardous materials. You have been requested by a large corporation in Millcreek Township to teach their Fire Brigade on various subjects of fire fighting and hazardous materials, which instruction would occur outside of your work time and for a fee for professional services to be set by yourself and the company. You specifically inquire as to whether you would be permitted to conduct this training as a training consultant, within the parameters of the Mr. Robert M. Mitchell February 7, 1992 Page 2 Ethics Law. You acknowledge that there is the possibility that you may, in the future, as part of your official duties, have occasion to enforce Fire Code violations on this company. However, you emphasize that your instruction would be on fire suppression and hazardous materials, and would not be on Fire and Building Codes. On , January 31, 1992, in a telephone conversation with the Assistant Counsel for this Commission, you clarified that in providing instructional services for the private company, you would not be an employee of the company, but rather you would be an independent private consultant. As a non - employee, you would not have any benefits from the company, and you would set your fee for your services. Your fee would not be subject to the withholding of taxes by the company, but rather such would be your obligation as an independent consultant. Based upon all of the above, you seek an advisory from this Commission. Discussion: As Chief Fire Inspector /Fire Marshal and Emergency Management Coordinator for the Township of Millcreek in Erie County, Pennsylvania, 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 Mr. Robert M. Mitchell February 7, 1992 Page 3 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 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 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. 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 Mr. Robert M. Mitchell February 7, 1992 Page 4 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 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and the 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 Ethics Law, a public official /public employee may not use the authority of public office /employment or cciifidential 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, although Section 3(a) would not restrict your private business dealings with the corporation or others seeking your instructional services, Section 3(a) would restrict your conduct as a public employee. 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) Mr. Robert M. Mitchell February 7, 1992 Page 5 would expressly 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 matters relating to the private business /private employer which may come before the public official /public employee in his official capacity. 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. As an independent, private consultant providing instructional services for the corporation, the corporation would be deemed to be your client. In the event that any of your clients, such as this particular corporation, would have a matter pending before you as a public employee,f or if you as part of your official duties would be required to conduct inspections or otherwise participate, review or pass upon such matters in your official capacity, a conflict would exist. Miller, Opinion 89- 024. In such instances, it will be necessary that you remove yourself from any participation of any nature whatsoever. As noted in Miller, matters which come before a public official /public employee involving his private business or private clients place the public official /public employee in a situation where he is faced with conflicting interests. In his private capacity, his duty is owed to a private firm or to himself if he is an independent private consultant, as well as to the private clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the governmental body with the being owed to the public rather than to private clients. Id; See also, Brooks, Opinion 89 -023. It is clear that in your capacity as a public employee, you would have a conflict of interest as to any matters involving this particular corporation and /or any other private clients. You would specifically have a conflict of interest as to enforcing Fire Code violations as to this company or other private clients. In each instance of a conflict of interest, you must divest yourself from any participation of any nature whatsoever, including conducting inspections or otherwise using the authority of your public employment. Furthermore, in each instance where a conflict of interest arises, you must observe the disclosure requirements of Section 3(j) set forth above. 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 Chief Fire Inspector /Fire Marshal and Emergency Management Coordinator for the Township of Millcreek in Erie County, Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. Subject to the restrictions and qualifications noted above, Section 3(a) of the Ethics Law would not preclude you from outside business activity as an independent, private consultant providing instructional services as a state certified instructor on fire service subjects and hazardous materials. In the event that private clients(s) would have matter(s) pending before you as a public employee, or if you would be required to perform official duties as to private client(s), you would have a conflict of interest. You specifically would have a conflict of interest as to enforcing Fire Code violations as to a client for which you have provided instructional services as a private consultant. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to 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. Mr. Robert M. Mitchell February 7, 1992 Page 6 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 Mr. Robert M. Mitchell February 7, 1992 Page 7 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. Sincerely, Vincent J. Dopko Chief Counsel