HomeMy WebLinkAbout98-620 HaightJames Haight
724 Main St.
Towanda, PA 18848
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
December 2, 1998
Re: Conflict; Public Official /Employee; Borough Code Enforcement Officer and
Construction Supervisor; Private Contracting Work.
Dear Mr. Haight:
This responds to your letter of November 5, 1998 by 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 Borough Code Enforcement Officer and Construction
Supervisor performing private contracting work in the Borough after working hours.
Facts: You have been the Code Enforcement Officer and Construction Supervisor
for Towanda Borough ( "Borough "), comprised of approximately 3200 residents, since
1991. You and the Public Works Superintendent are responsible for road construction
and the installation of all water and sewer mains, as well as construction of main
extensions in the Borough. You state that you "are both well qualified to install and
inspect the installation of service and lateral lines to private properties and are called
by the Borough to do so on a day -to -day basis depending on who is available at the
time."
Prior to working for the borough, you had been an excavating, concrete and
landscaping contractor since 1976. You state that because of your reputation and
construction knowledge, as well as the projects you have completed while working for
the Borough, private individuals request you to do work for them "after hours." In
addition to your Borough employment, you have continued to work privately on nights
and weekends, performing such services as water and sewer line replacement, lawn
maintenance, installing concrete sidewalks, landscaping, placing topsoil, seeding,
planting trees and shrubs, and plowing snow. In addition, a concrete contractor often
will hire you to excavate his project after he has secured a job. You state that, in cases
where it is required, permits and inspections are performed by others. Specifically,
sewer and water lines which you have installed privately are inspected by the Borough
Public Works Superintendent.
A Council Member has expressed concerns with the Code Enforcement
Department and has suggested that as your subordinate, the Assistant Code
Enforcement Officer should not be allowed to inspect your private work. You state that
the Council Member has said that, although it may be legal for you to perform private
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: sec@state.pa.us
98 -620
Haight, 98 -620
December 25, 1998
Page 2
work, the perception "doesn't look good" and you need to decide if you want to work
for the Borough or yourself. You have submitted a related newspaper article.
Stating that the next Council meeting will be held on December 7, 1998, you
request an advisory from the State Ethics Commission as to whether it is a conflict of
interest for you to perform private contracting work "after hours" if your work is
inspected by the Assistant Code Enforcement Officer, the Public Works
Superintendent, or someone else of the Council's choice. In addition, you ask whether
it is a conflict of interest for you to privately plow snow in the winter for extra income,
which work does not require a permit.
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 Code Enforcement Officer and Construction Supervisor for Towanda
Borough, you are a public employee as that term is defined in the Public Official and
Employee Ethics Law ( "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
Haight, 98 -620
December 25, 1998
Page 3
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.
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.
65 P.S. §403(j).
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.
Section 3(a) of the Ethics Law prohibits a public official /public employee 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.
In applying the above provisions of the Ethics Law to your inquiry, you are
advised that 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.
Haight, 98 -620
December 25, 1998
Page 4
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 in the course of
public action, 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.
If the private employer or business with which the public official /public
employee is associated would have a matter pending before the governmental body,
the public official /public employee would have a conflict of interest as to such matter.
Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public
official /public employee would be required to abstain from participation and to satisfy
the disclosure requirements of Section 3(j).
It is generally noted that a conflict of interest exists where a public official /public
employee, in his official capacity, participates, reviews or passes upon a matter
involving a business with which he is associated and /or private clients. Miller, Opinion
No. 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a
conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder,
Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996),
alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997).
In your case, as Code Enforcement Officer /Construction Supervisor, you would
have conflict in your public position as to matters involving contractors or private
clients for whom you did private work. As to such conflicts, you could not participate
and must observe the disclosure requirements of Section 3(j) noted above.
Conversely, you could not allow your subordinate, the Assistant Code
Enforcement Officer, to review /approve any work that you perform in a private
capacity. This conclusion is based upon the State Ethics Commission's rulings in Bassi,
Opinion No. 86- 007 -R, and Woodring, Opinion No. 90 -001.
In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia
that a County Commissioner (Edward Paluso) could not enter into a lease with a
municipal authority, where one of the members of the authority (Norman Carson) was
a county employee directly responsible to the commissioners of the county, unless the
execution of the lease was accomplished after an open and public process, with the
authority member abstaining from participating in the review and award of said lease,
and the county commissioner abstaining from participating in any matter relating to the
authority member in his position as a county employee. The Commission stated, inter
alia:
... we cannot ignore the fact that Mr. Carson is an authority member
and has influence and control over authority decisions. In this respect,
Mr. Carson, by voting on the final adoption of a lease, would be voting
on a matter directly related to his employer. Even though that employer
is another governmental body, we have held, in the past, that a public
official may not vote or participate in a matter if it somehow relates to a
financial interest which he may have. See, Welz, 86 -001. In the instant
situation, Mr. Carson would be called upon to determine the advisability
of renting property for the authority. The property which they are seeking
Haight, 98 -620
December 25, 1998
Page 5
See, Bassi, 86 -007 at 3. The Commission further stated:
Icy. at 4.
to rent is owned by the individual or one of the individuals who currently
supervises him and controls his public employment with the county. As
a result of this, Mr. Carson, as an authority member, should abstain from
participating in any matter relating to this particular lease.
Mr. Paluso as a county commissioner, is, in part, responsible for the
general supervision of Mr. Carson. Mr. Carson, on the other hand, is an
authority member in a position to grant Mr. Paluso a lease which results
in Mr. Paluso receiving a financial gain. It may be difficult for the public
to perceive how Mr. Paluso's actions as a county official, would not
somehow be influenced by this potential leasing arrangement. It may be
argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so
in order to effect the favorable outcome of this lease. Additionally, it
could be argued that Mr. Carson voted in favor of the lease in order to
advance his position as a full -time county employee. The above factual
scenarios, while hypothetical in nature, nonetheless create the types of
conflicts of interest that are to be addressed by this Commission.
In Woodring, Opinion No. 90 -001, the State Ethics Commission reviewed a
similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority,
had applied to the City for a rehabilitation grant through the Federal Rental
Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed
as the Executive Director of the Redevelopment Authority (chaired by Woodring) also
served as the Community Development Coordinator for Sunbury. In the latter capacity,
Pick was administrator in charge of the Program for the City. Pick's functions included
administering the Program, reviewing all applications, and determining eligibility. The
Commission stated:
. . . we are concerned that Mr. Pick, who is an employee of the
Redevelopment Authority of which you are Chairman, has the duty of
reviewing all applications and determining eligibility in his capacity as
Community Development Coordinator for the city. In particular, the
potential exists, given the employer - employee relationship between the
Redevelopment Authority and Mr. Pick, that your application might be
reviewed in a more favorable light than other applications. To forestall
such a situation, you must not participate or take any action as to Mr.
Pick if your application is approved and you receive benefits. Bassi,
Opinion 86 -007.
In addition, Section 3(j) of the Ethics Law would require you to
publicly note that you would have a conflict as to any matter involving
Mr. Pick. In addition, you must file a written memorandum to that effect
with the person responsible for recording the minutes.
Woodrinq, Opinion No. 90 -001 at 6.
As was the case in the Bassi and Woodring rulings discussed above, the facts
which you have submitted reflect that in your public position, the Assistant Code
Enforcement Officer would be subordinate to you. In your private capacity, the
Assistant Code Enforcement Officer is in a position to review /approve your work.
Therefore, for the reasons enunciated in Bassi and Woodrinc1, supra, you could not use
Haight, 98 -620
December 25, 1998
Page 6
the Assistant Code Enforcement Officer to take the necessary actions as to the private
work you perform, that is, some other person who is not in a subordinate position to
you will have to be substituted.
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 Code Enforcement Officer and Construction Supervisor for
Towanda Borough, you are a public employee subject to the provisions of the Ethics
Law. Although Section 3(a) of the Ethics Law would not prohibit the Borough Code
Enforcement Officer from performing private contracting work in the Borough after
working hours, he would have a conflict as Code Enforcement Officer in matters
involving the contractors or private clients for whom he did such work, could not
participate and must observe the disclosure requirements of Section 3(j) of the Ethics
Law. In addition, he could not use his subordinate, the Assistant Code Enforcement
Officer, to take action as to work that he performed in a private capacity. 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 I. 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.
incent J`Dbpko
Chief Counsel