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Home My WebLink About94-557 AntonacciEctwa"rtr V Antonacci , P.E. Antonacci & Associates 405 Michigan Avenue Jeannette, PA 15644 Dear Mr. Antonacci: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 20, 1994 94 -557 Re: Conflict, Public Official /Employee, City Engineer, Private Employment or Business, Work for Contractor on Bridge Project Between Borough and Township. This responds to your letter of April 6, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a City Engineer is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You are City Engineer for the City of Jeannette on a part - time basis. By agreement, you are required to provide the City with eight (8) hours of work per week plus attend all meetings. If the City has a project that requires an engineer, you will perform the work and submit an invoice for the extra hours to the City. You were contacted by Ted Foster of Zottola Construction and asked if you would be willing to perform some surveying work for them during the course of a project to replace a bridge bordering the City and neighboring Hempfield Township. When you learned of this request, you called the State Ethics Commission for an opinion. You state that your understanding from the conversation was that there was no perceived problem with you doing the work, but that a letter in writing would have to be issued. The circumstances surrounding this project are as follows: 1. Michael Bove Engineering is the Municipal Engineer and Project Engineer for Hempfield Township. All Antonacci, Edward L., P.E., 94= 5`5''1` April 20, 1994 Page 2 inspections, approvals for payment and authority rests with that firm as Project Engineer. That firm has the authority to approve payments to the contractor. 2. Hempfield Township is the sponsor of the bridge replacement project. 3. The City of Jeannette and Hempfield Township will each pay 2.5% of the project costs, the remaining costs are from state and federal funding. 4. As City Engineer for Jeannette, your responsibility will be to report events. You will have no authority as City Engineer on this project. This bridge is a Hempfield Township bridge and is the Township's project. 5. Your responsibilities with the contractor will be to perform field surveys such as placing survey points where storm drains and bridge abutments will be located. 6. Estimated value of your contract with Zottola Construction will be approximately $2,500.00. Discussion: Initially, it must be noted that while the Commission staff provides a public service by informing callers of various provisions of the Ethics Law, advisories are not issued by telephone. As an Engineer for the City of Jeannette 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 Antonacci, Edward L., P.E., 94 -557 April 20, 1994 Page 3 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. "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 or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, we note 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. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, 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. Antonacci, Edward L., P.E., 94 -557 April 20, 1994 Page 4 In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. In the event that your private employer or business has a matter pending before your governmental body or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process. • In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. In this case, you would have a conflict of interest in any matter before you as City Engineer as to Michael Bove Engineering, Zottola Construction or the bridge project, in its entirety. In each such instance of a conflict of interest, the requirements of Section 3(j), must be satisfied. See Miller, supra. 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 City Code. Conclusion: As an Engineer for the City of Jeannette, you are a public employee subject to the provisions of the Ethics Law. Antonacci, Edward L., P.E., 94 -557 April 20, 1994 Page 5 Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). fl l cerely, Li ' y � 6 Vincent Do • o Chief Counsel