HomeMy WebLinkAbout94-609 RobertsSeptember 26, 1994
Richard J. Roberts, Jr., Esquire
Leavens & Roberts
29 East Independence Street
P.O. Box 518
Shamokin, PA 17872 -0518
Dear Mr. Roberts:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
94 -609
Re: Conflict, Public Official /Employee, Use of Authority of Office
or Confidential Information, Township Engineer, Subcontracts
to Surveyor, Review of Surveyor's Work
This responds to your letters of August 30, 1994 and September
1, 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 township engineer
who subcontracts work to an independent surveyor with regard to
subdivision or land development plans prepared by said surveyor and
submitted to the township for approval.
Facts: As Solicitor for the Board of Supervisors of Montour
Township in Columbia County, Pennsylvania, you request an advisory
on behalf of the Township Engineer. The Township Engineer, inter
alia, reviews subdivision and land development plans for the
Township. He has an on -going business relationship with an
independent surveyor to whom he subcontracts certain survey work.
The surveyor has prepared subdivision and land development plans
and submitted them to the Township for approval. The Township
Engineer would be responsible for reviewing these plans and
providing the Township with advice concerning whether they should
be approved or rejected.
Based upon the above facts, you request an advisory from the
State Ethics Commission as to whether the Ethics Law would impose
any prohibitions or restrictions upon the Township Engineer under
these circumstances.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories
Roberts, Jr., Richard J., 94 -609'
September 26, 1994
Page 2
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. § §407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As Township Engineer for Montour Township in Columbia County,
Pennsylvania, the Township Engineer on whose behalf you have
inquired is a public employee as that term is defined under the
Ethics Law, and hence he 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
Roberts, Jr., Richard J., 94 -609
September 26, 1994
Page 3
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 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
Roberts, Jr., Richard J., 94 -609
September 26, 1994
Page 4
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 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.
A Township Engineer violates Section 3(a) of the Ethics Law
when he as a Municipal Engineer reviews or approves plans for
persons who employ him or with whom he has a business relationship.
See, Ferrero, Orders Nos. 720 and 720 -R. In this case, the
Township Engineer would have a conflict of interest with regard to
work prepared by the independent surveyor with whom the Township
Engineer has an on -going business relationship.
First, with regard to work which the Engineer directly
subcontracts to the surveyor, any review of such work by the
Township Engineer would be an obvious conflict of interest because
the Engineer would subcontract that very work and would receive a
resulting private pecuniary benefit from it.
Furthermore, the Township Engineer would also have a conflict
of interest as to any work submitted by the surveyor -- even if
that work would involve projects not subcontracted by the Township
Engineer -- based upon the on -going business relationship between
the Township Engineer and the surveyor. In Kannebecker, Opinion
92 -010, the Commission held, inter alia, that a Township Supervisor
who is also an attorney in his private capacity would have a
conflict of interest in matters before the Township involving his
clients (with specific emphasis upon clients with whom he had an
on -going business relationship), even where the matters before the
Township were unrelated to the Supervisor's representation of those
clients. See, also Miller, Opinion 89 -024.
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 or
Roberts, Jr., Richard J., 94 -609
September 26, 1994
Page 5
codes of professional ethics which may apply to Engineers.
Conclusion: As Township Engineer for Montour Township in Columbia
County, Pennsylvania, the Township Engineer on whose behalf you
have inquired is a public employee subject to the provisions of the
Ethics Law. The Township Engineer would have a conflict of
interest as to any work submitted by the independent surveyor with
whom the Township Engineer has an on -going business relationship
whereby the Township Engineer subcontracts certain survey work to
the surveyor. The conflict of interest would apply not only to
work which is specifically subcontracted by the Township Engineer
to the surveyor, but would also apply to other work by the
surveyor. In each instance of a conflict of interest, the Township
Engineer would be required to abstain from any participation and to
disclose his abstention and the reasons for same, both orally at
the public meeting and in a written memorandum to be filed with the
Township Supervisors such that it would be recorded in the minutes.
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
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.
such.
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 513.2(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 such an appeal at the Commission within fifteen
(15) days may result in the dismissal of the appeal.
cerely,
Vincent\J. Do ko
Chief Counsel