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HomeMy WebLinkAbout93-552 BlystonePeter E. Blystone, Esquire Blystone & Blystone 369 Center Street Meadville, PA 16335 STATE ETHICS COMMfSSlON 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 16, 1993 93 -552 Re: Conflict, Public Official /Employee, Borough Council Member, Immediate Family, Spouse, Business, Business with which Associated, State Correctional Institution, Improvement to Borough Water System. Dear Mr.' Blystone: This responds to your letters of April 1, 1993, and April 6, 1993, 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 a borough council member with regard to proposed improvements /repairs to the borough water system, some of which would exclusively or primarily benefit a state correctional institution, where the council member or a member of his immediate family is employed by the state correctional institution. Facts: As Solicitor for the Borough of Cambridge Springs in Crawford County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of three Members of Borough Council, namely Robert P. Repa, Jay C. Acklin, and Beverly A. Pequeen. You state that Cambridge Springs is a home rule charter municipality having adopted a home rule charter pursuant to the Home Rule Charter and Optional Plans Law effective the first Monday of January, 1976. You have submitted a copy of the Charter, which document is incorporated herein by reference. You submit the following factual background. In December, 1990, the Commonwealth of Pennsylvania, pursuant to the Capital Budget Project Itemization Act for 1990 -91, Act No. 23, acting Peter E. Blystone, Esquire April 16, 1993 Page 2 through the Pennsylvania Department of General Services and/or the Pennsylvania Department of Corrections ( "DOC ") acquired ownership of real estate situated in the Borough of Cambridge Springs and Cambridge Township, Crawford County, Pennsylvania. The property was formerly owned by the Polish National Alliance School Corporations and was the former site of Alliance College. You state that this property or portions of it is now being operated and maintained by the DOC as a State Correctional Institution ( "SCI "). Borough Council Member Robert P. Repa is employed by the SCI as a Corrections Officer. Council Member Jay C. Acklin is employed by the SCI as a Labor Foreman and Fire Safety Assistant. Council Member Beverly A. Pequeen's husband, Earl Pequeen, is employed by the SCI as a Labor Foreman. For more than a year, the Borough of Cambridge Springs has been working with its consulting engineers and other advisors with a view toward undertaking extensive renovations and improvements to the Borough water system. You state that although the construction project contemplated is a general improvement to the Borough water system, including a new water storage tank, repair or replacement of many water mains, lines, valves and other water equipment throughout the Borough as well as the repair or replacement of equipment at the water plant, some of the work included in the construction contract will be exclusively or primarily for the benefit of the SCI. You offer as an example that it is contemplated that the construction work will include approximately 1100 feet of ten -inch water line to run from the present water tank to the SCI property and approximately an additional 800 feet across the SCI premises. The cost of this work has been estimated by the consulting engineers at approximately $87,500. The Borough of Cambridge Springs and the DOC are in the process of negotiating an agreement whereby the DOC would reimburse the Borough for the cost of this work at the time of completion. Additionally, you - state that certain equipment and water lines are contemplated for the purpose of connecting the SCI and the rest of the Borough to the new water storage tank which is to be installed as part of the overall project. The consulting engineers have estimated the cost of this work at approximately $270,000 and the Borough is in the process of negotiating an agreement with the DOC whereby the Commonwealth would reimburse the Borough for the cost of this work over a period of several years. You state that the consulting engineers have estimated the total cost of the overall project at approximately $2,058,000. The Borough has obtained a loan commitment from the Pennsylvania Peter E. Blystone, Esquire April 16, 1993 Page 3 Infrastructure Investment Authority in the amount of $1,374,587. Other primary sources of financing such as the Farmers Home Administration, an agency of the federal government, have also been explored. The balance of the funding would come from the contributions of the DOC mentioned above, bank loans and one or more grants from the Pennsylvania Department of Commerce. Citizens of the Borough of Cambridge Springs have questioned whether Robert Repa, Jay Acklin and Beverly Pequeen would be required to abstain from voting on either the water project generally, including the awarding of construction contract(s), or an agreement with the DOC concerning reimbursing the Borough of Cambridge Springs'for part of the construction costs, by reason of employment of either themselves or a spouse by the SCI. You point out Sections 1406 and 1407 of the Borough Charter. You believe that it is probable that there would not be four favorable votes if Repa, Acklin and Pequeen were to abstain from voting. You state your belief that in that event, Repa, Acklin and Pequeen could rely on Section 3(j) of the Ethics Law and, after abstaining from the first vote, be permitted to participate in a revote. By a supplemental letter dated April 6, 1993, you have submitted copies of the official job descriptions of Jay C. Acklin and Earl Pequeen, which documents are incorporated herein by reference. You state that there is apparently no official job description for Robert P. Repa who is a corrections officer and is under civil service. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that your inquiry may only be addressed under the Ethics Law. The State Ethics Commission does not have the express statutory jurisdiction to interpret or enforce the Home Rule Charter of the Borough of Cambridge Springs. It is further initially noted that pursuant to Sections 7(10) and (11) of the Ethics Law, 65 P.S. §§407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does nat engage in an independent investigation of the facts, nor does it 'speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §407(10), (11). An advisory only affords a defense to the extent that the requestor has truthfully disclosed all of the material facts. Peter E. Blystone, Esquire April 16, 1993 Page 4 As Borough Council Members for the Borough of Cambridge Springs, Pennsylvania, Robert P. Repa, Jay C. Acklin and Beverly A. Pequeen are public officials as that term is defined under the Ethics Law, and hence each 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 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, Peter E. Blystone, Esquire April 16, 1993 Page 5 organization, self - employed individual, holding company, - joint stock company, receivership, trust or any legal entity organized for profit. "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 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 Peter E. Blystone, Esquire April 16, 1993 Page 6 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 reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91-523 - S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, the sole factual basis alleged for a conflict of interest is that Repa, Acklin and Pequeen's spouse are employed by the SCI which would be the exclusive or primary beneficiary of some of the work proposed to be done to the Borough water system. The SCI, as part of the Commonwealth of Pennsylvania, is not within the definition of "business" as set forth in the Ethics Law, and therefore is not a business with which Repa, Acklin, or Pequeen's spouse would be associated within the parameters of the Ethics Law. Thus, under the facts which you have submitted, Robert P. Repa, Jay C. Acklin, and Beverly A. Pequeen would not have a conflict of interest under Section 3(a) of the Ethics Law as to proposed renovations and improvements to the water system of the Borough of Cambridge Springs. However, this Advice is conditioned upon the assumption that the proposed action would not result in a private pecuniary benefit to the public officials themselves, members of their immediate families, or businesses with which they or members of the their immediate families are associated. For example, if the continued operation of the SCI -- and therefore the continued employment of Repa, Acklin and Pequeen's spouse -- were to depend upon the proposed renovations /repairs, a clear conflict Peter E. Blystone, Esquire April 16, 1993 Page 7 of interest would exist for each of these public officials. In each instance of a conflict of interest, a public official/ public employee must fully abstain and satisfy the disclosure requirements of Section 3(j) of the Ethics Law. A clear reading of Section 3 indicates that as to boards having more than three members, public officials having conflicts could only vote after necessary disclosure in cases where the conflicts of the public officials under the Ethics Law make the majority (or other legally required vote) unattainable. In this regard, Section 3(j) is explicit in the condition that "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. . . ." Thus, in order for this provision to be operative, it is necessary that a sufficient number of public officials who have a conflict under the Ethics Law would abstain so that the majority or legally required vote could not be attained. To be specific, in the case of a five member board, three public officials would have to have a conflict under the Ethics Law in order for this provision to become operative; in the case of =a seven member board, it would be necessary for four public officials to have a conflict under the Ethics Law in order for this Section to become operative. Conversely, in a seven member board, the fact that three members would have a.conflict under the Ethics Law would be an insufficient basis under Section 3(j) for these members to vote after disclosure since a majority or legally required vote could still be attainable despite their abstention. Further, the fact that the abstention of three members would result in the remaining four members not casting four favorable votes would not be a circumstance under Section 3(j) which would allow voting. Such a situation would be similar to a case where a five member board would be deadlocked due to a resignation or absence of one of the board members. 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 Home Rule Charter of the Borough of Cambridge Springs, Pennsylvania. Conclusion: As Borough Council Members for the Borough of Cambridge Springs, Pennsylvania, Robert P. Repa, Jay C. Acklin and Beverly A. Pequeen are public officials subject to the provisions of the Ethics Law. The State Correctional Institution where Repa, Acklin, and Pequeen's spouse are employed is not a "business" as defined in the Ethics Law, and therefore is not a business with which Repa, Acklin, and Pequeen's spouse are associated. Under the Peter E. Blystone, Esquire April 16, 1993 Page 8 submitted facts, and subject to the conditions, restrictions, and qualifications noted above, Robert P. Repa, Jay C. Acklin, and Beverly A. Pequeen would not have a conflict of interest under Section 3(a) of the Ethics Law as to proposed renovations and improvements to the water system of the Borough of Cambridge Springs. This Advice is specifically conditioned upon the assumption that the proposed action would not result in a private pecuniary benefit to the public officials themselves, members of their immediate families, or businesses with which they or members of their immediate families are associated. Where a conflict exists, the public official /public employee is required to fully abstain and satisfy the disclosure requirements of Section 3(j) set forth above. As to governing bodies with more than three members, Section 3(j) of the Ethics Law would only allow public officials who have a conflict to vote, after appropriate disclosure, in those instances where the number of the public officials who have a conflict under the Ethics Law makes the majority or other legally required vote of approval unattainable. 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 §2.12. (Sincerely, Vincent J. Dopko Chief Counsel