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HomeMy WebLinkAbout93-550 PazFrank P. Paz, Esquire Paz, Paz & Paz 543 East Tenth Avenue Tarentum, PA 15084 Dear Mr. Paz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1993 93 -550 Re: Simultaneous Service, Municipal Authority Engineer and Joint Sanitary Authority Engineer; Conflict, Proposed Connection of Joint Sanitary Authority to Municipal Authority Lines. This responds to your letter of April 2, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a municipal authority engineer from also serving or being employed as engineer for a joint sanitary authority where it has been proposed that the joint sanitary authority connect onto the lines of the municipal authority. Facts: As Solicitor for the Upper Allegheny Joint Sanitary Authority, which services the municipalities of the Boroughs of Brackenridge and Tarentem and the Townships of Buffalo, East Deer, Fawn and Harrison, you request an advisory from the State Ethics Commission as to whether a conflict of interest exists with regard to the newly retained engineering firm of Gibson - Thomas Engineering Company, Inc. ( "Gibson- Thomas "). In addition to representing the Upper Allegheny Joint Sanitary Authority ( "Joint Sanitary Authority "), Gibson - Thomas represents the Municipal Authority of Buffalo Township and the Municipal Authority of Fawn Township as Engineer. You state that presently there are contracts of service with the Joint Sanitary Authority, the Municipal Authority of Buffalo Township and the Municipal Authority of Fawn Township in the matter of their connecting onto the Joint Sanitary Authority's lines. You state that prior to this year, and prior to the appointment of Gibson - Thomas as Engineer for the Joint Sanitary Authority, the Joint Sanitary Authority had an Frank P. Paz, Esquire April 14, 1993 Page 2 informal meeting with the Municipal Authority of Buffalo Township at which Gibson - Thomas was present. You state that the crux of the meeting was whether the Joint Sanitary Authority would be agreeable, in the event the Municipal Authority of Buffalo. Township received proper approval and financing, to hook onto the lines of that Authority. However, no commitment was given. You state that the Municipal Authority of Buffalo Township has requested the Joint Sanitary Authority, for purposes of gaining approval of various state and federal authorities, for a letter stating that the Joint Sanitary Authority would entertain a discussion as to servicing the Township. You state that finances were not discussed and Gibson - Thomas, on behalf of the Municipal Authority of Buffalo Township, had just presented the Joint Sanitary Authority with a proposed route for the flow of the sewage into the Joint Sanitary Authority system. You ask whether a conflict of interest exists as to the representation by Gibson- Thomas of the Municipal Authority of Buffalo Township and the Joint Sanitary Authority. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: As Engineer for the Upper Allegheny Joint Sanitary Authority ( "Joint Sanitary Authority "), as well as for various municipal authorities, Gibson - Thomas Engineering Company, Inc. ( "Gibson - Thomas "), is a "public employee" as that term is defined in the Ethics Law and hence Gibson - Thomas is subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. 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 Frank P. Paz, Esquire April 14, 1993 Page 3 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 public office or position of public employment. 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 any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Before applying the above provisions of the Ethics Law to the question of simultaneous service, it is initially noted that there does not appear to be any statutorily declared incompatibility which would preclude simultaneous service as engineer for multiple authorities. Basically, the Ethics Law does not state that it is inherently incompatible for an engineering firm to simultaneously serve as a public employee in the capacity as engineer for multiple authorities. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, Gibson- Thomas would not be serving entities with interests which are inherently adverse to each other, despite the ;13g tit Lot L LZV as to certa in issues the authorities may have or may L l rc�.uaaluLJ aic44a.4.‘. va. �.aic i t tsar r�. public employee himself, any member of his immediate . family, or - a business with which he or a member of his immediate family is associated. Should a situation arise where the use of authority of Frank P. Paz, Esquire April 14, 1993 Page 4 public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, Gibson- Thomas would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the secretary who keeps the minutes. For example, a conflict of interest may arise should Gibson - Thomas, in its capacity with the Joint Sanitary Authority, review work which it has performed in another capacity, such as in its capacity as engineer for the Municipal Authority of Buffalo Township. Other possible conflicts of interest could arise where an engineering firm serving multiple authorities would use the authority of its public positions to generate additional work for itself,` resulting in a private pecuniary benefit to itself, or ensure its ongoing, compensated service in its position with one authority by advancing the acceptance and /or approval of its work by the second authority. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the Code of Ethics of the Engineering Profession, although it is noted that the said Code of Ethics of the Engineering Profession includes the following: It shall be considered unprofessional and inconsistent with honorable and dignified bearing for any professional engineer or professional land surveyor: 1. To act for his client or employer in professional matters otherwise than as a faithful agent or trustee, or to accept any remuneration other than his stated recompense for services rendered. L+enclvsiona As Engineer for the Upper Allegheny Joint Sanitary Frank P. Paz, Esquire April 14, 1993 Page 5 Engineering Company, Inc. must comply with the restrictions of Section 3(a) of the Ethics Law pertaining to conflicts of interest as set forth above. In each instance of a conflict of interest, Gibson - Thomas Engineering Company,. Inc. would be required to abstain and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Lastly, the propriety of the proposed course of 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 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. Very truly yours, Jkce-g-f4 P'43 Vincent . Dopko, Chief Counsel