HomeMy WebLinkAbout98-513 ForbesWilliam J. Forbes
Forbes Consulting Service
Municipal Building
Suite 214
Mount Pleasant, PA 15666
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1 610
ADVICE OF COUNSEL
February 11, 1998
98 -513
Re: Conflict, Public Official /Employee, Borough, Appointment, Zoning Officer,
Consultant, Services, New Construction, Building Renovations, Contract.
Dear Mr. Forbes:
This responds to your letter of January 12, 1998 by which you requested
advice from the State Ethics Commission.
i ae : Whether the Public Official and Employe Ethics Law presents any
prohibition or restrictions upon an individual with regard to being appointed the
borough zoning officer when he provides consulting services to the borough in new
construction and building renovations.
Facts: You are being considered for an appointment as the Zoning Officer for
Mount Pleasant Borough. Currently you provide consulting to the Borough in new
construction and building renovations. You also provide supervision and project
management for the Borough. You currently hold no other elected office within Mount
Pleasant Borough. You state that the duties of the Zoning Officer do not conflict with
the services that you provide to the Borough as a Consultant. You seek advice as
to whether your service as a Consultant will conflict with your appointment as Zoning
Officer for Mount Pleasant Borough.
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.
Forbes, 98 -513
February 11, 1998
Page 2
As Zoning Officer for Mount Pleasant Borough, you would be a public official
as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "),
and hence you 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.
"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." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"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.
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. "Contract" shall not mean an agreement or
arrangement between the State or political subdivision as
Forbes, 98 -513
February 11, 1998
Page 3
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters
in consideration of his current public employment with the
Commonwealth or a political subdivision.
Section 3(f) of the Ethics Law provides as follows:
Section 3. Restricted activities
(f) No public official or public employee or his
spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
Section 3(f) does not operate to make contracting with the governmental body
permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 3(f) requires that an
"open and public process" be observed as to the contract with the governmental body.
Pursuant to Section 3(f), an "open and public process" includes:
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to be
able to prepare and present an application or proposal;
(3) public disclosure of all applications or proposals considered; and
(4) public disclosure of the contract awarded and offered and accepted.
Section 3(f) of the Ethics Law also requires that the public official /employee may
not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
Section 3(j) of the Ethics Law provides as follows:
Forbes, 98 -513
February 11, 1998
Page 4
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.
In each instance of a conflict, 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 the above provisions to your inquiry, it is initially noted that the
Ethics Law would not preclude your appointment as Zoning Officer. The Ethics Law
does not operate to preclude appointments to positions absent a statutorily - declared
incompatibility or inherent conflict between public positions. In your capacity as a
consultant, you do not hold a public position.
However, 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 consulting service is a business with which you are associated.
Section 3(a) of the Ethics Law does not prohibit public officials /public employees
from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position — or
confidential information obtained by being in that position — for the advancement of
his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section
3(a) would include: (1) the pursuit of a private business opportunity while acting in a
Forbes, 98 -513
February 11, 1998
Page 5
public capacity, Metrick, Order No. 1037; (2) the use of governmental facilities, such
as governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation. in an official capacity
as to matters involving the business with which the public official /public employee is
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041.
Moreover, as Zoning Officer, you would have a conflict of interest in matters
involving your consulting business and /or its client(s). Kannebecker, Opinion No. 92-
010. As Zoning Officer, you would specifically be prohibited from reviewing or
otherwise acting upon projects for which you /your firm would have provided
consulting services. See, Miller, Opinion No. 89 -024. A conflict of interest would
likewise exist as to projects for which you and /or your consulting service would have
a reasonable expectation of business involvement. Snyder, Order No. 979 -2.
In each instance of a conflict of interest, you would be required to abstain from
participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth
above.
As for Section 3(f), that Section would apply to contracting /subcontracting
involving you /your business and the Borough where such contract or subcontract
would be valued at $500 or more. The restrictions of Section 3(f) would specifically
apply to new, renewed, or modified contracts between you /your firm and the Borough
for consulting services.
Parenthetically, although contracting between you /your firm and the
Borough would not be prohibited under the Ethics Law provided the requirements of
Sections 3(a), 3(f), and 3(j) would be satisfied, a problem could exist as to such
contracting under the Borough Code, which provides as follows:
§46404. Penalty for personal interest in contracts or
purchases
Except as otherwise provided in this act, no borough
official either elected or appointed, who knows or who by
the exercise of reasonable diligence could know, shall be
interested to any appreciable degree either directly or
indirectly in any purchase made or contract entered into or
expenditure of money made by the borough or relating to
the business of the borough, involving the expenditure by
the borough of more than one thousand dollars ($1000) in
any calendar year, but this limitation shall not apply to
cases where such officer or appointee of the borough is an
employe of the person, firm or corporation to which the
money is to be paid in a capacity with no possible influence
on the transaction, and in which he cannot be possibly
benefited thereby either financially or otherwise. But in the
case of a councilman or mayor, if he knows that he is
within the exception just mentioned he shall so inform
council and shall refrain from voting on the expenditure or
any ordinance relating thereto, and shall in no manner
Forbes, 98 -513
February 11, 1998
Page 6
participate therein. Any official or appointee who shall
knowingly violate the provisions of this section shall be
subject to surcharge to the extent of the damage shown to
be thereby sustained by the borough and to ouster from
office, and shall be guilty of a misdemeanor, and upon
conviction thereof shall be sentenced to pay a fine not
exceeding one thousand dollars ($1000), or not exceeding
one hundred eighty days' imprisonment, or both.
53 P.S. §46404.
Since such contracting may be prohibited by the above quoted provision, it is
suggested that you seek legal advice in that regard.
This Advice is limited to addressing the applicability of Sections 3(a), 3(f) and •
3(j) of the Ethics Law. It is expressly assumed that there has been no use of authority
of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics
Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a public official /public employee and no public
official /public employee shall solicit or accept anything of monetary value based upon
the understanding that the vote, official action, or judgment of the public official /public
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.
Lastly, 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.
Conclusion: As Zoning Officer for Mount Pleasant Borough, you would be a
public official subject to the provisions of the Ethics Law. Although you /your firm
provide(s) consulting services to Mount Pleasant Borough in new construction and
building renovations, the Ethics Law would not preclude your appointment as the
Borough's Zoning Officer. However, you could not use the authority of office or
confidential information obtained by being in the public position to obtain private
business, and any private business activity could not be conducted using governmental
facilities or personnel.
Moreover, as Zoning Officer, you would have a conflict of interest in matters
involving your consulting business and /or its client(s). As Zoning Officer, you would
specifically be prohibited from reviewing or otherwise acting upon projects for which
you /your firm would have provided consulting services. A conflict of interest would
likewise exist as to projects for which you and /or your consulting service would have
a reasonable expectation of business involvement.
Section 3(f) would apply to contracting /subcontracting involving you /your
business and the Borough where such contract or subcontract would be valued at
$500 or more. The restrictions of Section 3(f) would specifically apply to new,
renewed, or modified contracts between you /your firm and the Borough for consulting
services.
Forbes, 98 -513
February 11, 1998
Page 7
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Law. It is suggested that legal advice be obtained with regard to the possible
applicability of the Borough Code.
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 1. 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.
erely,
Vincent J. opko
Chief Counsel