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HomeMy WebLinkAbout94-566 ReillyJ. Thomas Reilly, P.E. President The EADS Group Neilan Engineers Division P.O. Box 837 1065 Tayman Avenue Somerset, PA 15501 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 26, 1994 94 -566 Re: Conflict, Public Official /Employee, Borough Engineer, Use of Authority of Office or Confidential Information, Business with which Associated, Owner of Land in Borough, Sale of Land to School District, Opinion to Borough regarding Land Use. Dear Mr.Reilly: This responds to your letter of April 26, 1994 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 engineer from providing an opinion to the borough regarding a school district's use of land that is the subject of a contract for sale from a business with which the engineer is associated to the school district. Facts: Your firm, Neilan Engineers Division (NED), is the appointed Consulting Engineer for Somerset Borough (Borough) and as such, you, and R. Eric Critchfield, as principal owners of Neilan Engineers Division, represent the Borough. Both you and Mr. Critchfield, along with several other employees, indirectly own FADS Development Partnership, which owns land in the Borough. This group of employees of NED along with employees of EADS, NED's parent company, indirectly have a 27% interest in EADS Development Partnership. Somerset Area School District is planning to build a new elementary school on a parcel of ground adjacent to the EADS Development Partnership property and as part of the District's development, a right -of -way will be required across the property of FADS Development Partnership. Reilly, J. Thomas, 94 -566 May 26, 1994 Page 2 In its capacity as Consulting Mr. Critchfield, will be called opinions as to whether the Borough necessary capacity to accommodate EADS Development Partnership has negotiated the sale of this right -of -way to the Somerset Area School District for a price of $9,900.00. The right -of -way is 40 feet wide by 500 feet long. The sale was negotiated even though EADS Development Partnership does not want the District going across its land; EADS wanted to avoid condemnation proceedings. The sale of the right - of -way will be finalized upon the District obtaining all local and state approvals. Engineer, NED, and in particular upon by the Borough to render water and sewer system have the the proposed school. You state this possible action raises the following question: Is it a violation of the State Ethics Act for NED employees to render an opinion to the Borough with regard to the Somerset Area School District meeting the necessary Borough approvals? Based upon the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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 not 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. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Pursuant to the Public Official and Employee Ethics Law of June 26, 1989, Act No. 9, the Commission may only administer the Act as to public officials, public employees, candidates for public office and other persons involved in official activity with the above persons. The authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Law is limited by statute, to those persons who request it relative to their duties or to the appointing authority of such persons or the employer of such persons at the request of the appointing authority or employer. Thus, the Commission cannot issue an opinion /advice concerning the duties of a public official /employee under the Ethics Law unless the request is made by one of the above authorized persons or entities. In this case, an advisory may be issued only as to your conduct and cannot address the Ethics Act as to Mr. Critchfield or Reilly, J. Thomas, 94 -566 May 26, 1994 Page 3 any other NED employee. As an Engineer for Somerset Borough, 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 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. Reilly, J. Thomas, 94 -566 May 26, 1994 Page 4 "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 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 • Reilly, J. Thomas, 94 -566 May 26, 1994 Page 5 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the Ethics Law to this case, it is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public official from using the authority of office public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. In this case EADS is clearly a business with which you are associated as that term is defined under the Ethics Law. Further advising the borough on whether the proposed school project may be accommodated by the Borough water /sewer system is a use of authority of office. Juliante, Order 809. The question becomes whether such use of authority of office will result in a� private pecuniary benefit to the business with which you are associated. In this case, your advice could impact upon whether the Borough will give the necessary approval which will in turn affect the finalization of the sale of the right -of -way by EADS to the District. If that sale occurs, EADS will receive $9,900.00. Accordingly, you would have a conflict as to participating or Reilly, J. Thomas, 94 -566 May 26, 1994 Page 6 advising as borough engineer as to the District project, the capacity of the Borough water /sewer system to accommodate the project, the right -of -way and the granting of approval for the project. You must observe and follow the disclosure requirement of Section 3(j) noted above. In Deemer, Order 905, the Commission held that a municipal engineer violated Section 3(a) of the Ethics Law when he participated as to municipal decisions regarding development plans or modules wherein he as a private engineer or his business, his engineering firm, performed certain engineering services for private clients who submitted such plans. In Brooks, Opinion 89- 023, the Commission held that a school director who was employed by an architectural firm that was project manager for a school construction project had a conflict as to the project, its financing, and the performance of contractors and the architectural firm. See also Rannebecker, Opinion 92 -010; Miller, Opinion 89- 024. As noted above, your participation or advice to borough council could impact upon whether EADS will sell the right -o -way to the District. The argument the EADS is reluctant to sell is not relevant since notice or intent is not a condition for the applicability of the Ethics Law. Yacobet v. SEC, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). 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 respective municipal code. Conclusion: As Engineer for Somerset Borough, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit your participation or involvement as borough engineer as to a school project which involves the sale of a right -of -way by the business with which you are associated to the School District. The restrictions of Section 3(j) of the Ethics Law must be followed. 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. This letter is a public record and will be made available as Reilly, J. Thomas, 94 -566 May 26, 1994 Page 7 such. 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). Failure to file the appeal at the Commission within fifteen (15) days may result in the dismissal of your appeal. cerely, ■ '. Vincent , . Dopko Chief Counsel