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HomeMy WebLinkAbout95-506 PsarisRonald J. Psaris, Esquire Psaris & Allen 407 Main Street P.O. Box 1 Red Hill, PA 18076 Re: Conflict, Public Official /Employee, Municipal Sewer Authority, Member, Chairman, Business with which Associated, Engineering /Surveying Firm, Development. Dear Mr. Psaris: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 27, 1995 95 -506 This responds to your letter of December 21, 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 member and chairman of a joint municipal sewer authority who is a partial owner of an engineering /surveying firm, with regard to a development within the service area of the municipal sewer authority for which the engineering /surveying firm is doing subdivision and land development work. Facts: As Solicitor for the Green Lane - Marlborough Joint Authority ( "Authority "), you request an advisory from the State Ethics Commission on behalf of the Authority's Chairman, Mr. Alan Breyer, with regard to his prospective conduct. The Authority was created by the Borough of Green Lane and the Township of Marlborough. The Board consists of six members, three from each municipality. Authority officers are elected by the Board Members on an annual basis. The Chairman conducts the public meetings and participates in the discussion of Board business but neither makes nor seconds any motions. The Chairman only votes in the event of a tie vote by the Members. The Chairman does execute various documents regarding Board business and participates in various Authority committee meetings. The Chairman functions as a typical Member for most other issues. Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 2 Chairman Breyer is a partial owner of an engineering /surveying firm. The firm itself (but not the Chairman) has done certain preliminary subdivision and land development work for a developer whose land is within the service area of the municipal sewer authority. Apparently, initial meetings and preliminary submissions have been made to the Township. The Board Members have been made aware of the proposed project on an informal basis. The engineering firm representative has discussed, in general, issues of procedure and plant capacity with the sewer plant operator. As of this date, no formal application has been submitted to the Authority nor has any request been made to the Board for any connections or main line extensions to the system. The Authority's governing documents indicate that "simple connections" (those which connect to an existing line) are non - discretionary by the Board and must be accepted if there is available plant capacity. These are the typical connections of one (1) or two (2) homes to the system. "Main line extensions" (those which require construction of a new main sewer line to typically service a larger number of new homes) require the approval of the municipalities who then would direct the Authority to proceed with the project. The Authority is then responsible for the details of construction. There is an initial determination for all connections of available plant capacity that is made by the Authority and it is based on the consulting engineer's information and D.E.R. requirements. Because of infiltration problems, there has been recent concern by the Members of a lack of capacity for a large number of connections and this fact has been made known to all inquiring parties. The Authority's consulting engineer is reviewing the issue at this time. The Board Members are aware of the Chairman's financial interest in the firm doing the developer's subdivision work. One citizen has raised the issue of the Chairman's conflict of interest at a recent public meeting of the Authority. You have posed the following specific inquiries: 1. Does the Chairman have a conflict of interest at this time, prior to any formal submission or application to the Authority for any type of connection? 2. Does the Chairman have a conflict of interest if a submission or application is made to the Authority? 3. If a conflict exists at this time, is there anything the Chairman should or can do to resolve it, other than Psaris, Ronald J., Esquire, 95 -50,6 January 27, 1995 Page 3 resignation? 4. If a conflict only arises upon an actual submission or application, is there anything the Chairman should or can do to resolve it at that time, other than resignation? 5. Would the answers to the above questions differ were the Chairman only a Member and not the Chairman? (You note that each member of the Authority does hold some type of office, e.g., Assistant Secretary, Assistant Treasurer, etc.) Noting that until the opinion is issued, the Chairman will continue with his normal duties because there is no specific action currently pending before the Board on this matter, 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. § §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 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 a Member and Chairman for the Green Lane - Marlborough Joint Authority ( "Authority "), Mr. Alan Breyer is a public official 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 Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 4 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. "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 Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 5 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 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. 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 Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 6 with which he or a member of his immediate family is associated. Although you have not specified the precise ownership interest of Chairman Breyer in the engineering /surveying firm, this Advice shall assume that Breyer's interest is within the definition of "financial interest" as set forth in the Ethics Law, such that the firm would be a business with which the Chairman is associated. 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, Opinion 89 -013. 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 private employer or business has a matter pending before the governmental body or if the public official /public employee 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 is necessary that the public official /public employee be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the public official /public employee abstain from participation but also file a written memorandum to that effect with the person recording the minutes or the 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 applying these restrictions to the specific facts which you have submitted, Chairman Breyer would clearly have a conflict of interest as to matters pertaining to the development and /or the Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 7 developer for which his engineering /surveying firm is doing work. This would apply not only to specific projects performed by the engineering /surveying firm but to other matters as well. In this regard, the Commission has held that a public official /public employee has a conflict of interest not only as to the particular work done by his firm, but as to the firm's clients generally. See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. In each instance of a conflict of interest, Chairman Breyer would be required to abstain from any participation. You are advised that the term "authority of office" encompasses more than mere deliberations and /or voting and extends to every facet of a particular position, including but not limited to discussing, conferring with others and lobbying for a particular result. See, Juliante, Order No. 809. However, the mere procedural calling of a matter for a vote in the capacity as Chair would not rise to the level of a Section 3(a) violation. See, Snyder, Advice 93 -562. Turning to your specific inquiries, your first and second specific inquiries are whether the Chairman has a conflict of interest at this time, prior to any formal submission or application to the Authority for any type of connection, or whether a conflict would arise if a submission or application is made to the Authority. You are advised that a conflict of interest as defined under the Ethics Law would arise at the point at which a public official /public employee would use the authority of his public position or confidential information which he has received from being in that position 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. As for your third and fourth specific inquiries, the Chairman's duties in each instance of a conflict of interest are as set forth above, and require that the Chairman abstain fully and meet the disclosure requirements of Section 3(j). Section 3(a) of the Ethics Law would not require that the Chairman resign merely because a conflict of interest may arise for him as to specific matters. Finally, as for your fifth specific inquiry, the restrictions of the Ethics Law and the requirements imposed by the Ethics Law in instances of conflicts of interest fully apply to Authority Members without regard to whether those individuals also hold officer positions within the Authority. 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 Psaris, Ronald J., Esquire, 95 -506 January 27, 1995 Page 8 herein is the applicability of the respective municipal code. Conclusion: As a Member and Chairman for the Green Lane - Marlborough Authority, Mr. Alan Breyer is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mr. Breyer from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the engineering /surveying firm with which Mr. Breyer is associated and /or its client(s) would have matter(s) pending before the governmental body, then Mr. Breyer would have a conflict of interest as to such matter(s). In each instance of a conflict of interest, Mr. Breyer would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. However, Mr. Breyer would not be prohibited from merely procedurally calling a matter for a vote. 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 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. Sincerely, Vincent . Dop o Chief Counsel