Loading...
HomeMy WebLinkAbout00-543 IngramValorie Ingram R.R. #2, Box 189 Columbia Cross Roads, PA 16914 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 16, 2000 00 -543 Re: Conflict; Public Official /Employee; Borough; Secretary/Treasurer; Engineering Firm; Immediate Family Member; Fiance; Business With Which Associated. Dear Ms. Ingram: This responds to your letter of February 22, 2000 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 et se ., presents any prohibition or restrictions upon a borough secretary /treasurer where: (1) the borough secretary/treasurer's fiance is employed by an engineering firm that provides services to a township authority; and (2) the borough secretary /treasurer provides secretarial services to the township authority on behalf of the borough. Facts: You are the Secretary/Treasurer for South Waverly Borough ( "Borough "). Athens Township Authority ( "Township Authority ") and South Waverly Municipal Authority ( "Municipal Authority ") have contracted with the Borough to have the Borough provide sewer billing services. You attend Township Authority meetings when you are available. When you are not available, the Township Authority and the Municipal Authority have an appointed secretary who records the minutes. You were previously employed by Athens Township ( "Township "). You have been doing sewer billing work for the Township Authority since 1980. When you accepted the position as Secretary/Treasurer for the Borough, the Township Authority contracted with the Borough to have the Borough provide it with billing services. The contract is a three -party contract which provides that "[the Borough] will provide to [the Township Authority] and [the Municipal Authority] a secretarial service and computer operator to bill, collect and service sewage customers for the sum of $5,644.26 each annually. You state that the contract does not specifically name you personally or the Borough Secretary. You opine that "a secretarial service" could be anyone whom the Borough designates to do the work. You state that you have never received compensation from the Township Authority. You were employed by the Township and received your wages from the Township. Your W -2 forms for the past four years are from the Borough. You have not or will never receive a W -2 from the Township Authority or the Municipal Authority as neither of those two entities have employees. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Ingram, 00 -543 March 16, 2000 Page 2 Sweetland Engineering & Associates, Inc. ( "Sweetland ") is the Township Authority's engineer of record. The Township Authority does not pay a monthly retainer to Sweetland as Sweetland's services are on an "as needed" basis. Sweetland reviews plans for new developments for the Township Authority and merely offers its recommendations. Sweetland is not permitted to and does not make any decisions for the Township Authority. When Sweetland inspects a development project that is not a Township Authority project, it only makes observations and reports its findings to the Township Authority. The Township Authority then decides what changes are needed and reviews the plans and Sweetland's recommendations. You type the letters for the Township Authority Chair who signs them before they are mailed. You do not sign your name because you do not make any decisions for the Township Authority. You direct questions or persons to the the Township Authority's Chair or you take messages for the Chair. A situation has arisen involving another engineering firm called Young Engineers ("Young"), which is located in the same town as Sweetland. You state that the Township Authority does not do business with Young and has turned Young down numerous times due to its reputation and work conduct. Up until the time that Sweetland opened an office in town, Young was the only engineering firm in the area. Municipalities that formerly used Young now use Sweetland. Sweetland has obtained a contract to provide engineering services on a retainer basis to the municipality in which Young's business is located and in which Mr. Young of Young Engineers resides. You state that the Township Authority has rules and regulations that all developers and developments must follow. If a plan is presented, it is reviewed by Sweetland, which then returns the plan to the Township Authority with its recommendations. One of Sweetland's employees is your fiance. You state that Mr. Young is continually harrassing you, your fiance and Sweetland over what he perceives is a conflict due to your work for the Township Authority. Young and Sweetland agreed that your fiance would not do any work for Sweetland other than to finish a project he has overseen since the first day it began two years ago. The project is the Mills Pride Infrastructure Project ( "Project ") in Bradford County which is worth a few million dollars. The Township Authority received grants for the water and sewer placement. You state that Young did not get the job and has had hard feelings since that time. You also state that Young was hired by the developer, afterwhich problems arose that nearly led to litigation among the parties. The matter was resolved through an agreement between Young and Sweetland where both parties split the costs of a re -work through an insurance carrier both firms used. During the first few months of the Project, Sweetland obtained other jobs within your county and opened up an office in the town. You state that Mr. Young still continues to harrass you and your fiance. The Township Authority Chair and the Authority Board Members have spoken with Sweetland regarding the fact that you are engaged to an employee of Sweetland. Sweetland feels that there is no conflict and also feels that it is not the business of Sweetland or Young as to what you do with your life since you are not employed by the Township Authority, do not make any decisions for the Township Authority, and do not sign any checks for the Township Authority. You add that your name is not listed on any checking accounts or related business with the Township Authority. In your opinion, you are just "paper pushing." You state that Sweetland has said that your fiance is not Sweetland and does not make any decisions on its behalf. You add Ingram, 00 -543 March 16, 2000 Page 3 that the Township Authority is a seven - member board that approves all bills and makes all decisions. A recent incident has occurred involving an invoice from Young for the Project which was tabled by Township Authority. The invoice was tabled because the Township Authority did not approve any of the change orders that were included in the invoice and Young allowed the changes to a water tank. You state that the Township Authority does not have a contract with the company that Young used to do the work. The contract is between the developer who hired Young and the construction company. You state that the Township Authority tabled approving Young's invoice in January since Young did not attend a meeting to try to resolve the situation. Mr. Young feels that since he answered the questions in a letter to the Township Authority after the meeting, the Township Authority should pay the invoice. The Township Authority Chair notified Young that it is the Township Authority's decision and that the matter would be discussed at the next Authority meeting in February. You state that this situation arose over the construction company calling Sweetland to find out why the Township Authority did not pay the invoice. Since the matter involved the Project, your fiance told the construction company that the Township Authority tabled approval of the invoice until February. The construction company then called your office. You reiterated what your fiance had said and gave the construction company the telephone number of the Township Authority Chair. The Chair also told the construction company that the matter had been tabled until February and reminded the company that the contract was with the developer, not the Township Authority. You note that the construction company relayed all of the information to Young who began to harrass you about your fiance doing work for the Township Authority by answering the construction company's question. You state that it is your attorney's opinion that Young's public comments constitute harassment. You state that Mr. Young has made numerous comments about you and your fiance to a number of public figures in town. You seek an advisory as to whether you have a conflict in Tight of the above facts. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Secretary /Treasurer for South Waverly Borough ( "Borough "), it will be assumed that you are a public official /employee as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Ingram, 00 -543 March 16, 2000 Page 4 Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). 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 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." 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. 65 Pa.C.S. §1102. In addition, Sections 1 103(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. Ingram, 00 -543 March 16, 2000 Page 5 Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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 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 1103(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 Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Your fiance does not fall within any of the familial relationships delineated above, and therefore, he is not a member of your immediate family. You would not have a conflict under Section 1103(a) of the Ethics Act as to your participation in matters involving your fiance or Sweetland. However, once you marry, Section 1103(a) would prohibit you from using the authority of your office as Borough Secretary /Treasurer or confidential information, for the private pecuniary benefit of yourself, your spouse, or a business with which you or your spouse are associated. Upon marrying your fiance, Sweetland would become a business with which your spouse would be associated. Ingram, 00 -543 March 16, 2000 Page 6 As to the question of whether you have a conflict of interest because you provide services to the Township Authority which has tabled the approval of Young's invoice regarding the Project involving your fiance, you are advised as follows. You as a Borough Secretary /Treasurer would not have a conflict as to providing services to another municipality as per a contract between the Borough and that municipality. See, Warso, Order No. 974. 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: As Secretary/Treasurer for South Waverly Borough, it is assumed that you are a public official /employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 I seq. Your fiance is not a member of your immediate family. You would not have a conflict under Section 1 103(a) of the Ethics Act as to your participation in matters involving your fiance or Sweetland, a business with which he is associated. However, once you marry, Section 1103(a) would prohibit you from using the authority of your office as Borough Secretary /Treasurer or confidential information, for the private pecuniary benefit of yourself, your spouse, or a business with which you or your spouse are associated. Upon marrying your fiance, Sweetland would become a business with which your spouse would be associated. You as a Borough Secretary /Treasurer would not have a conflict as to providing service to another municipality as per a contract between the Borough and that municipality. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), 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 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. rely, Vincent J. ► • ;, ko Chief Counse