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HomeMy WebLinkAbout94-635 HewittDear Mr. Hewitt: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 5, 1994 Daniel J. Hewitt, Esquire Attorney at Law 975 Greengate North Plaza Greensburg, PA 15601 -2012 94 -635 Re: Conflict, Public Official /Employee, Private Employment or Business, Township Fire Marshal, Private Corporation, Personal Protection and Safety Devices, Emergency Operations Plans for Commercial Facilities. This responds to your letter of October 31, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibitions or restrictions upon a township fire marshal who also operates a private business which includes the demonstration and sale of home and personal protection safety devices and the preparation of emergency operations plans for employees of commercial facilities, in addition to public service. Facts: As the Solicitor for a second class township located in Westmoreland County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of the Board of Supervisors and with the consent and concurrence of the individual involved, specifically the Township Fire Marshal. The Township Fire Marshal is a Board - appointed managerial employee who oversees and enforces Fire Code and life safety regulations. In his official capacity, the Fire Marshal reviews and approves plans for sprinkler systems and fire alarm monitoring for commercial structures as those plans are designed by local security companies. The Fire Marshal also conducts a private business licensed as a corporation in Pennsylvania which undertakes certain actions and sales both within the Township and elsewhere. The business operations include the demonstration and sale of home and personal protection safety devices (burglar alarms and door braces) and the preparation of emergency operations plans for employees of commercial facilities. In one instance, the emergency operation Hewitt, Daniel J., Esquire, 94-635 December 5, 1994 Page 2 plan included the demonstration of the use of fire extinguishers. A Township resident who operates a fire extinguisher raised a concern that the operation of the company th e e Fire Marshal constitutes a conflict of interest under the Ethics Law. You state that the apparent basis of the claim is that, in his private business, the Fire Marshal may be in direct competition with other local businesses over which he has regulatory power when performing his official duties and functions. The Fire Marshal's private business activities involve areas for which there are no Township regulations and for which he has no regulatory authority. You state that there is no evidence that the Fire Marshal has used for his private business benefit any proprietary information submitted to him in his official capacity. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: As a Board - appointed managerial employee with the responsibility for overseeing and enforcing the Fire Code and life safety regulations, the Township Fire Marshal 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 Hewitt, Daniel J., Esquire, 94- 6 December 5, 1994 Page 3 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 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 Hewitt, Daniel J., Esquire, 94 -635 December 5, 1994 Page 4 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 vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3 official /employee to abstain and to abstention and reasons for same, both written memorandum to that effect with minutes or supervisor. (j) requires the public publicly disclose the orally and by filing a the person recording the 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 permissible provided the disclosure re Participation is followed. See, Mlakar, Advice 91 -523 -g requirement noted above are 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 confidential information received by public ld ng such office/employment a public osition for the private pecuniary benefit of the employee himself, any member of his immediate famil , o r a b usine s s with which he or a member of his immediate family is associated. It is noted 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. 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. In addition, the public official /employee could not during Hewitt, Daniel J., Esquire, 94 -635 December 5, 1994 Page 5 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 the public official's /public employee's private employer or business has a matter pending before his governmental body or if he as part of such official duties would participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it would be necessary that he be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require that the public official /public employee abstain from participation and also file a written memorandum to that effect with the person recording the minutes or his 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. Having set forth the above parameters which apply generally to circumstances where a public official /public employee is also involved in private business activity, the circumstances which you have presented in this case will now be specifically addressed. The facts which you have submitted are that the Township resident who has expressed a concern as to this matter is concerned that the operation of the Fire Marshal's private business constitutes a conflict of interest under the Ethics Law. As is readily apparent from the discussion above, Section 3(a) of the Ethics Law which pertains to conflict of interest does not operate to restrict a person in his private capacity performing private business activities. Rather, Section 3(a) operates to restrict a person in his public capacity. For example, the Fire Marshal would be restricted by Section Hewitt, Daniel J., Esquire, 94 -635 December 5, 1994 Page 6 3(a) from using the authority of his position as Fire Marshal or confidential information he may have access to as a result of serving in that capacity to secure private clients. Additionally, in the event that any of the Fire Marshal's private business clients would have a matter pending before him as a public employee, or if he is part of his duties would be required to conduct inspections or otherwise participate, review or pass upon such matters in his official capacity as to private business clients, in those instances a conflict would exist. Miller, Opinion 89 -024. As noted in Miller, matters which come before a public official /public employee involving his private business or private clients place the public official /public employee in a situation where he is faced with conflicting interests. In his private capacity, his duty is owed to a private firm or to himself if he is an independent private business operator, as well as to the private clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the governmental body with the duty being owed to the public rather than to private clients. Id.; See also, Brooks, Opinion 89 -023; Mitchell, Advice 92 -529. It is clear that in his capacity as a public employee, the Township Fire Marshal would have a conflict of interest as to any matters involving his private business clients. He would specifically have a conflict of interest as to enforcing Fire code and life safety regulations as to his private clients. In each instance of a conflict of interest, he would be required to divest himself from any participation of any nature whatsoever, including conducting inspections or otherwise using the authority of his public employment, and he would be required to observe the disclosure requirements of Section 3(j) set forth above. Furthermore, Section 3(a) restricts a public official /public employee from using the authority of office or confidential information received by being in such a public position to the detriment of private business competitors. See, Pepper, Opinion 87 -008. However, the Township Fire Marshal would not be precluded from engaging in private business activities merely because those activities might compete with other local businesses over which he has regulatory power when performing his official duties and functions. 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. Conclusion: As a Board - appointed managerial employee with the Hewitt, Daniel J., Esquire, 94 -635 December 5, 1994 Page 7 responsibility of overseeing and enforcing the Fire Code and life safety regulations, the Township Fire Marshal as to whom you have inquired is a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude the Fire Marshal from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the Township Fire Marshal's private business and /or its clients would have matters pending before him, then the Township Fire Marshal could not participate in his official capacity as to such matters and the disclosure requirements of Section 3 (j) of the Ethics Law as outlined above would have to be satisfied. The Township Fire Marshal would have a conflict of interest as to enforcing Fire Code and life safety regulations as to his clients. Section 3(a) of the Ethics Law would preclude the Township Fire Marshal from using the authority of his public position or confidential information received by being in that position to the detriment of private business competitors. In each instance of a conflict of interest, the Township Fire Marshal would be required to abstain from any participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. 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. 'ncerely, Vincent . Dopko Chief Counsel