HomeMy WebLinkAbout00-568 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
April 18, 2000
Re: Conflict; Public Official /Employee; Stormwater Engineer; Township.
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -568
This responds to your letters of February 17, 2000, and March 17, 2000 by
which you requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a Stormwater
Engineer reviewing development plans from an engineering firm in which a member of
his immediate family is employed.
Facts: As Solicitor for Township A, you have been authorized by the Township
to seek an advisory from this Commission as to B, the Township Stormwater Engineer.
As Stormwater Engineer, B is responsible for the initial review of development
plans to ensure compliance with the Township Stormwater Ordinances. B reports to
the Director of Code Enforcement, who in turn reports to the Director of Planning and
Engineering. Following review of the development plans for compliance with the
Township Stormwater Ordinance, B makes recommendations regarding approval of the
plans to the Director of Code Enforcement and other staff. Under the Second Class
Township Code, the Board C has the final authority to approve or reject any plans
submitted.
A member of B's immediate family is an employee of an engineering firm, which
occasionally submits development plans to Township A for approval. These plans may
include a stormwater component. B does not receive any remuneration from the
engineering firm.
The Township has referred any plans submitted by this engineering firm to an
outside engineer for review rather than submitting them to B. However, the Township
requests an advisory as to whether a conflict of interest would exist if the plans were
to be assigned to B for review rather than an outside engineer.
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
Confidential Advice, 00 -568
April 1 8, 2000
Page 2
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 Stormwater Engineer for Township A, B is a public employee as that term
is defined in the Ethics Act, and hence B is subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. Definitions.
65 Pa.C.S. §1102.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
"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.
"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.
"Immediate family." A parent, spouse, child, brother
or sister
Section 1 103(j) of the Ethics Act provides as follows:
Section 1 103. 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
Confidential Advice, 00 -568
April 1 8, 2000
Page 3
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.
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 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.
Under Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from participating in matters involving a business with which a member of
his immediate family is associated. The engineering firm is a business with which a
member of B's immediate family is associated based upon your factual submission.
Consequently, B would have a conflict and may not participate in matters involving
that engineering firm. B must also observe the disclosure requirements of Section
1103(j) as noted above.
Confidential Advice, 00 -568
April 1 8, 2000
Page 4
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 Stormwater Engineer for Township A, B is a public employee
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. §1101 et sseg. B would have a conflict as to matters involving an
engineering firm, which is a business with which a member of his immediate family is
associated. B must not participate in such matters and observe the disclosure
requirements of Section 1103(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
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.
erely,
qb
Vincent 1 1110 • ko
Chief Counsel