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Home My WebLink About96-550 RussellJacqueline L. Russell, Esquire Russell & Russell Thompson Building 3rd Floor, Room 310 Pottsville, PA 17901 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 13, 1996 96 -550 Re: Conflict, Public Official /Employee, Member, Municipal Sewer Authority, Engineer, On -Lot Sewage System Designs. Dear Ms. Russell: This responds to your letter of April 9, 1996 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 of a municipal sewer authority who, as a registered engineer, does design work as to on -lot sewage systems for private individuals. Facts: You are writing on behalf of a Member of a Municipal Sewer Authority (Authority) which was formed by the Township municipality because of the likelihood in the future that a public sewer system may be necessary. In addition to his position as an Authority Member, the individual is also a registered engineer who sometimes is requested to provide drawings for proposed on -lot sewage systems for township residents. You state that the on -lot sewage systems are not necessarily reviewed by the Authority but rather, by the Sewage Enforcement Officer for the Township. However, the Authority is also involved in reviewing and recommending on -lot management programs for areas where public sewer is not available or to be provided and this individual has been hired to perform design work for the on -lot system. You inquire as to whether such conduct is permissible under the Ethics Law. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (1 1), 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 Russell, 96 -550 May 13, 1996 Page 2 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 of a Municipal Sewer Authority, the individual on whose behalf you are writing would be a public official as that term is defined under the Ethics Law, and hence he would be 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. "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: Russell, 96 -550 May 13, 1996 Page 3 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 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 Section 3(a) of Act 9 of 1989 to the question you pose, the response will be general since you have asked a very generalized question. Under the Ethics Law there would be a conflict in those instances where there is a use of the authority of office for a private pecuniary benefit or financial gain. In applying these restrictions to the specific facts which you have submitted, the individual would clearly have a conflict of interest as to matters pertaining to work /services for private clients. 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 this particular case, an example of a conflict of interest would be where the individual has performed services for on -lot sewage systems and then would participate in matters involving public sewers or similar matters in the area where the private client's property is located. In each instance of a conflict of interest, the individual would be required to abstain from any participation. You are also 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. Russell, 96 -550 May 13, 1996 Page 4 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 a Member of a Municipal Sewer Authority, the individual on whose behalf you are writing would be a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, an Authority Member who is an engineer would have a conflict as to private clients for whom he performed engineering services, as well as in matters involving the on -lot or public sewer status of the areas wherein those clients reside. In all instances of conflict, the requirements of Section 3(j) 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. This letter is a public record and will be made available as 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 thirty (30) 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 such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ��cerely, Vincent J. opko Chief Counsel