HomeMy WebLinkAbout99-574 HoyMichael W. Hoy
Municipality of Murrysville
4100 Sardis Road
Murrysville, PA 15668
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
July 8, 1999
Re: Conflict; Public Official /Employee Code Enforcement Officer /Zoning
Officer /Sewage Enforcement Officer; Municipality; Developer.
Dear Mr. Hoy:
This responds to your letter of June 3, 1999 by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 el seq., presents any prohibition or restrictions upon a code enforcement
officer /zoning officer /sewage enforcement officer who plans to become a builder and
developer within the municipality.
Facts: You are the Chief Administrator of the Municipality of Murrysville,
Westmoreland County. You are seeking advice concerning a potential conflict as to one
of your employees. As in Morrison, Advice 97 -611, it is assumed that you as the Chief
Administrator are the "employer" of this individual as per Section 1107(11) of the Ethics
Act, 65 Pa.C.S. 1107(11), and Section 13.1(a) of the Regulations, 51 Pa. Code §
13.1(a).
The individual currently is employed by the Municipality as the Code Enforcement
Officer /Zoning Officer /Sewage Enforcement Officer with responsibilities including
inspection of commercial and residential building activities and enforcement of zoning
and other municipal codes relative to building activities. The employee reports directly
to the Director of Community Development who is responsible for the review and
recommendation to the Planning Commission and Council on all development activities
within the Municipality. The employee, in reporting to the Director of Community
Development, often does so as a consultant on building, grading and zoning issues in the
review of applications for development. The employee also issues all land operations
permits as well as assists in the establishment of appropriate bond amounts required for
improvements by developers.
The employee has presented and received approval for a 50 home development
within the Municipality. The employee has actively marketed his development in local
papers and has presented himself in his ads as a "Developer ". The employee has
submitted applications for land operations permits and bond calculations. These
applications have been forwarded to a co- worker for review and comment. The
employee has stated his intention to build all homes in the development himself. All
building permits will be issued by a fellow Code Officer within the employee's
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
99 -574
Hoy, 99 -574
July 8, 1999
Page 2
65 Pa.C.S. §1103(a).
department. Many of the suppliers, sub - contractors and potential buyers are individuals
who potentially interact with this employee during his normal course of duties.
You pose the following questions:
1. Given the employee's duties and responsibilities, whether there is
a conflict in the employee's continued employment with the: (a) active
marketing of his development, (b) indirect contact with fellow employees
who issue permits and conduct inspections, (c) indirect or direct
relationship with potential sub - contractors and vendors;
2. Whether there is a conflict as to potential financial gain by an
employee outside the workplace that adversely interferes with the
operations of the Municipality; and
3. Whether there is a conflict as to potential financial gain by an
employee outside the workplace which could be perceived by the general
public to impair his independence of judgement in the performance of his
duties as an employee.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the
Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(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 /Zoning Officer /Sewage Enforcement Officer for
Municipality of Murrysville, your employee is a "public employee" as that term is defined
in the Ethics Act, and hence your employee is subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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
Hoy, 99 -574
July 8, 1999
Page 3
65 Pa.C.S. §1102.
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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of
the assets of the economic interest in indebtedness.
(j) Voting conflict. - -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
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
Hoy, 99 -574
July 8, 1999
Page 4
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 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1 103(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 of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, 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.
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). The State Ethics Commission
has also held that it is a conflict of interest under Section 1103(a) for a public
official /public employee to pursue a private business opportunity in the course of public
action. Metrick, Order No. 1037.
In Miller, supra, the Commission noted that a public official /public employee must
be in a position to provide professional services and recommendations on an impartial
basis to the municipality. If matters involving the public employee or, the business with
which he is associated would be submitted to the municipal body wherein he would have
to perform review or approval functions, a conflict of interest would exist.
In each instance of a conflict of interest, the public official /public employee must
abstain from participation in his public capacity. The abstention requirement is not limited
merely to voting, but extends to any use of authority of office. In Juliante, Order No.
809, the Commission recognized that the use of authority of office as defined in the
Ethics Act includes, for example, discussing, conferring with others, and lobbying for a
particular result. In each instance of a conflict of interest, the public official must also
satisfy the disclosure requirements of Section 1103(j) set forth above.
As to the specific questions you pose, questions one (a), two and three may not
be addressed since the private activities of the public employee are not regulated by the
Ethics Act, only his activities as a public employee. Regarding the first inquiry, parts (b)
and (c), the Ethics Act would not preclude per se contacts /relationships with other
employees who issue permits or improvements or with sub - contractors /vendors;
however, as noted above, the public employee would have a conflict as to matters
involving his development, the houses therein, the buyers and people in general with
whom he has a financial relationship. In such instances, the public employee must
abstain and satisfy the disclosure requirement of Section 1103(j).
Hoy, 99 -574
July 8, 1999
Page 5
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve
an interpretation of the Ethics Act. Specifically not addressed herein is the applicability
of the respective municipal code.
Conclusion: The Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer
for Municipality of Murrysville is a public employee subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 g sgg. Although the
Ethics Act does not prohibit the public employee from becoming a developer /builder in
a private capacity, he would have a conflict as to matters involving his development, the
houses therein, the buyers and people in general with whom he has a financial
relationship. In such cases, the public employee must abstain and satisfy the disclosure
requirements of Section 1 103(j) of the Ethics Act. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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 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.
S nc - rely,
Vincent �Dop o
Chief Counsel