HomeMy WebLinkAbout96-590 BrayDavid M. Bray
531 Pen Argyl Street
Pen Argyl, PA 18072
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 11, 1996
96 -590
Re: Conflict, Public Official /Employee, Sewage Enforcement Officer, Business With
Which Associated, Engineering Firm, Employer's Brother.
Dear Mr. Bray:
This responds to your letter of August 5, 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 Sewage Enforcement Officer who is also privately
employed by an engineering firm, where the employer's brother owns a separate
business and designs systems within a township where the Sewage Enforcement
Officer issues permits.
Facts: You are employed by an engineering firm and also work separately as a
Sewage Enforcement Officer (SEO). Your employer's brother owns a separate
business and designs systems within a township where you issue permits. You have
submitted a copy of 25 Pa.Code §72.41 pertaining to the powers and duties of
Sewage Enforcement Officers. Noting that you understand that the State Ethics
Commission will not make decisions on the Regulations which you have submitted
(which are the regulations of a different administrative agency), you ask whether the
above circumstances present a conflict of interest under the Ethics Law.
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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.
Bray, 96 -590
September 11, 1996
Page 2
As a Sewage Enforcement Officer, you are a public official /public employee as
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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:
Bray, 96 -590
September 11, 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 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 with which he or a member of his immediate family
is associated. Your employer's engineering firm is a "business with which you are
associated." Your employer's brother's business is not a business with which you or
a member of your immediate family is associated, based upon the facts which you
have submitted and conditioned upon the assumption that neither you nor a member
of your immediate family is a director, officer, owner, employee, or financial interest
holder of that business. While Section 3(a) would apply to restrict you as an SEO from
reviewing the work of your employer, see, Miller, Opinion 89 -024, Section 3(a) would
have no applicability to your review of systems designed by your employer's brother
Bray, 96 -590
September 11, 1996
Page 4
where he designs such systems in his own business, completely separate and apart
from your employer.
Of course, Sections 3(b) and 3(c) set forth above would prohibit any improper
understandings as to your actions as an SEO.
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 regulations promulgated by other administrative agencies,
specifically 25 Pa.Code §72.41, and /or the respective municipal code.
Conclusion: As a Sewage Enforcement Officer, you are a public official subject
to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you
would not have a conflict of interest as to reviewing systems designed by your
employer's brother in his own, separate business, based upon the conditions,
qualifications, and restrictions set forth above. Sections 3(b) and 3(c) would apply to
prohibit any improper understandings as to your actions as an SEO. 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
forma/ 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. Dopko
Chief Counsel