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HomeMy WebLinkAbout96-620 DiPieroRichard S. DiPiero First Deputy Executive Director Philadelphia Parking Authority Suite 800 Two Penn Center Plaza Philadelphia, PA 19102 Dear Mr. DiPiero: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 19, 1996 96 -620 Re: Conflict, Public Official /Employee, City, Parking Authority, Regulations, Valet Parking Company, Owner, Business With Which He Is Associated. This responds to your letter of November 15, 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 the First Deputy Executive Director of a Parking Authority regarding the licensing, regulation, and enforcement of valet parking zones where the Executive Director is also the owner of a valet parking company. Facts: As the First Deputy Executive Director of the Philadelphia Parking Authority, you request advice from the State Ethics Commission. The Philadelphia Parking Authority (Authority) is a public agency established by Commonwealth enabling legislation. Its original mandate was to support the City of Philadelphia (City) in its efforts to provide economic development with authority to issue bonds and build public parking facilities. Based upon a cooperative agreement with the City in 1983, the Authority also took over all on- street parking management responsibilities including the management of parking regulations including meters and regulatory signage; all activities related to parking enforcement including parking tickets and towing; and the seizure of vehicles for non - payment of parking tickets. The Authority has three specific divisions, each with a Deputy Director: Administration and Finance; On- Street Parking; and Off - Street Parking. Having been employed by the Authority for over 13 years in a variety of positions, you currently serve as the First Deputy Executive Director overseeing the Administration and Finance DiPiero, 96 -620 December 19, 1996 Page 2 Division which includes all administrative services such as finance, personnel, risk management, and purchasing, as well as design and construction activities and constituent services. There is currently a parking regulation which exists for the regulation of passenger loading zones. These zones allow for parking for 20 minutes unless actively loading or unloading. Regulation of these zones is often requested and paid for by businesses, including restaurants which operate their valet parking operations in such zones. The Authority is responsible for reviewing these applications and installing the regulatory signs. The zones are enforced by both the Philadelphia Police Department and the Philadelphia Parking Authority. Within the Authority, all functions associated with this regulation are the responsibility of the Deputy Executive Director for On- Street Parking. You own and operate a valet parking company in the City which provides valet parking services. You state that you have filed this information every year on your Financial Interests Statement. Restaurants have hired your company to operate their valet parking operation. The City has established specific rules which valet companies must adhere to such as having an agreement with an off - street parking facility in order to comply with the current passenger loading zone regulation of 20 minute parking. Many passenger loading zones are located in metered locations which have a dual regulation. For example, meters remain in effect until a certain time and then become passenger loading zones. You state that there is likely to be a change in parking regulations which would create valet parking zones. These zones will be paid for by the applicant business. It is likely that the Authority will be the authorized City agency to license, regulate and enforce these valet zones. You pose the following specific questions: 1. Whether it is a conflict of interest for you as an employee of the Parking Authority to engage in a private parking business such as valet parking or as the operator of surface parking lots or both as either an employee, officer or owner of such a business. 2. Whether it is a conflict of interest for you as an employee of the Parking Authority to operate such a business when you have no oversight responsibilities for the regulation or enforcement of these functions. 3. Whether a conflict exists if, in the future, the Parking Authority is the regulatory agency specifically for valet parking zones, noting that the valet parking company would not be the entity which would apply for a valet parking zone. 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 DiPiero, 96 -620 December 19, 1996 Page 3 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the First Deputy Executive Director of the Philadelphia Parking Authority, you are a public employee as that term is 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. "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 DiPiero, 96 -620 December 19, 1996 Page 4 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. As to the first question you pose, 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 -01 1. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. 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 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 your private employer or business has a matter pending before your governmental body or if you 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 will be necessary that you be removed from that process. As to the second and third questions posed, the fact that you have oversight or regulatory responsibilities over such business does not per se create a conflict. Halverson, Advice 96- 560 -CL. You would have a conflict as to matters involving your DiPiero, 96 -620 December 19, 1996 Page 5 own business, must recuse yourself, and observe the disclosure requirements of Section 3(j) above. You could not use the authority of office which would result in a private pecuniary benefit to the business with which you are associated, as for example, taking action which would eliminate or impede your business competitors or conversely take action which would favor your business. 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 the First Deputy Executive Director of the Philadelphia Parking Authority, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above 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. D ko Chief Counsel