HomeMy WebLinkAbout20-510 HerskowitzPHONE: 717-783-1610
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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
March 2, 2020
To the Requester:
Mr. Benjamin Herskowitz
Dear Mr. Herskowitz:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
20-510
This responds to your letter dated January 14, 2020, received January 23, 2020,
by which you requested an advisory from the Pennsylvania State Ethics Commission
("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 05
P—a-.YS. § 1101 et se ., would impose prohibitions or restrictions upon an individual
employed as the Emergency Management Radiological Planner/Trainer for the
Lancaster County Emergency Management Agency with regard to performing the duties
of his public position, where: (1) the individual serves as the Hazmat Chief/Fire Chief
("Chief') of the Hazmat 2 Environmental Fire Rescue Company ("Hazmat 2"); (2) in his
capacity as the Chief of Hazmat 2, the individual serves as a non -voting Member of the
Hazmat 2 Board of Directors; (3) Hazmat 2 is a non-profit fire department that has a
formal agreement or contract with Lancaster County "County"), Pennsylvania, for the
provision of responses to hazardous materials emergencies; and (4) Hazmat 2 receives
approximately $100,000.00 annually from the County for reimbursement of insurance
and operational costs.
Facts: You request an advisory from the Commission based upon submitted
acts, the material portion of which may be fairly summarized as follows.
You are currently employed as the Emergency Management Radiological
Planner/Trainer for the Lancaster County Emergency Management Agency ("County
EMA"). You have submitted a copy of a job description (the "Job Description") for your
position with the County EMA, which document is incorporated herein by reference.
In your current position with the County EMA, your duties and responsibilities
include managing the application process for a grant that the County receives from the
Radiological Emergency Response Fund ("RERF Grant"). You develop the budget for
the RERF Grant and you administer the RERF Grant. You do not sign the RERF Grant
agreement ("RERF Grant Agreement") between the County and the Commonwealth,
and you do not have final approval over any distributions from the RERF Grant. The
Director of the County EMA signs the RERF Grant Agreement as authorized by the
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Lancaster County Board of Commissioners and approves the distributions from the
RERF Grant. The County may use the RERF Grant to pay for training for radiological
response personnel in the region and to purchase equipment.
You are the Chief of Hazmat 2, in which capacity you serve as a non -voting
Member of the Hazmat 2 Board of Directors. Hazmat 2 is a non-profit fire department
that serves the County as a State -Certified Hazardous Materials Response Team. The
Count typically enters into a formal agreement or contract (the "Agreement/Contract")
with Hazmat 2 for the provision of responses to hazardous materials emergencies. The
County Commissioners sign the Agreement/Contract on behalf of the County. In the
past, the Chairperson of the Hazmat 2 Board of Directors and the Chief of Hazmat 2
have signed the Agreement/Contract on behalf of Hazmat 2.
Hazmat 2 utilizes some of the equipment that the County purchases with RERF
Grant funds. Hazmat 2 personnel may attend or participate in training that is paid for by
the RERF Grant.
Hazmat 2 receives approximately $100,000.00 annually from the County for
reimbursement of insurance and operational costs. Hazmat 2 receives other funds from
direct billing for its services.
You state that you would like to participate in future discussions between the
County and Hazmat 2. You further state that if you would be prohibited from signing the
Agreement/Contract in your capacity as the Chief of Hazmat 2 due to your employment
with the County EMA, you would be able to delegate your authority to sign the
Agreement/Contract to the Deputy Chief of Hazmat 2.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon you with regard to
performing the duties of your position as the Emergency Management Radiological
Planner/Trainer for the County EMA.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
ofthe Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester 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 requester has truthfully discllosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice ma be given only as to prospective (future) conduct. To
the extent that your in airy reIa es to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As the Emergency Management Radiological Planner/Trainer for the County
EMA, you are a public employee subject to the provisions of the Ethics Act. This
conclusion is based upon the Job Description, which when reviewed on an objective
basis, indicates clearly that the power exists to take or recommend official action of a
non -ministerial nature with respect to one or more of the following: contracting;
procurement; administering or monitoring grants or subsidies; planning or zoning;
inspecting; licensing, regulating; auditing; or other activity(ies)� where the economic
impact is greater than de minimis on the interests of another person.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
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(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 related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 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.
"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.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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 or 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 each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend to
any use of authority of office including, but not limited to, discussing, conferring with
others, and lobbying for a particular result. Juliante, Order 809.
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March 2020
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Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1 TM a o t e
Ethics Act, a public officiallpublic employee:
... must act in such a way as to put his [office/public position]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the [public official/public employee] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, su ra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, Iic official/public employee "must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. --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.
65 Pa.C.S. § 1103(f).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"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. The term shall not mean an agreement or
arrangement between the State or political subdivision as
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.
65 Pa.C.S. § 1102.
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Section 1103(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 1103(f) requires that an
open and public process" be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also provides that the public officiallpublic employee
may not have any supervisory, or overall responsibility as to the implementation or
administration of the contract with the governmental body.
In ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Hazmat 2 is a business with which you are associated in yyour capacity as a
Director. See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009)
(Holding tat the Ethics Act's definition o the term "business" includes non-profit
entities
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics
Act would impose restrictions upon you in your capacity as a public employee (i.e., the
Emergency Management Radiological Planner/Trainer for the County EMA), rather than
upon you in your private capacityCies) as the Chief of Hazmat 2 and/or a Member of the
Hazmat 2 Board of Directors.
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public
capacity as the Emergency Management Radiological Planner/Trainer for the County
EMA in matters that would financially impact you, a member of your immediate family,
or a business with which you or a member of your immediate family is associated such
as Hazmat 2. In each instance of a conflict of interest, you would be required to abstain
from participation.
It is noted that the restrictions and requirements of Section 1103(f) of the Ethics
Act would have to be observed as to any contract between Hazmat 2 and the County
EMA that would be entered into during your employment as the Emergency
Management Radiological Planner/Trainer for the County EMA and that would be
valued at $500 or more. (See, Kistler, supra, regarding the requirements for an `open
and public process.")
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
on cduct 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 County Code.
Conclusion: Based upon the submitted facts that: (1) you are currently
employed as the Emergency Management Radiological Planner/Trainer for the
Lancaster County Emergency Management Agency ("County EMA"); (2) in your current
position with the County EMA, your duties and responsibilities include managing the
application process fora rant that the County receives from the Radio] cal
Emergency Response Fund`RERF Grant"); {3) develop the budget for the RERF
Grant and ou administer the RERF Grant; (4�ou
you do not sign the RERF Grant
agreement `RERF Grant Agreement") between the County and the Commonwealth,
and you do not have final approval over any distributions from the RERF Grant; (5) the
Director of the County EMA signs the RERF Grant Agreement as authorized by the
Lancaster County Board of Commissioners and approves the distributions from the
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RERF Grant; (6) the County may use the RERF Grant to pay for training for radiological
response personnel in the region and to purchase equipment; 7) you are the Hazmat
Chief/Fire Chief ("Chief') of the Hazmat 2 Environmental Fire Rescue Companyy
Hazmat 2") in which capacity you serve as a non -voting Member of the Hazmat 2
rd of Directors; (8) Hazmat 2 is a non-profit fire department that serves the County
as a State -Certified Hazardous Materials Response Team; (9) the County typically
enters into a formal agreement or contract (the "Agree me nt/C on tract") with Hazmat 2 for
the provision of responses to hazardous materials emergencies; (10) the County
Commissioners sign the Agreement/Contract on behalf of the County; Mmat
in the past,
the Chairperson of the Hazmat 2 Board of Directors and the Chief of 2 have
signed the Agreement/Contract on behalf of Hazmat 2; (12) Hazmat 2 utilizes some of
the equipment that the County purchases with RERF Grant funds; (13) Hazmat 2
personnel may attend or participate in training that is paid for by the RERF Grant; (14)
Hazmat 2 receives approximately $100,000.00 annually from the County for
reimbursement of insurance and operational costs; (15) Hazmat 2 receives other funds
from direct billing for its services; (16) you would like to participate in future discussions
between the County and Hazmat 2; and (17) you state that if you would be prohibited
from signing the Agreement/Contract in your capacity as the Chief of Hazmat 2 due to
your employment with the County EMA, you would be able to delegate your authority to
sign the Agreement/Contract to the Deputy Chief of Hazmat 2, you are advised as
follows.
As the Emergency Management Radiological ,Planner/Trainer for the County
EMA, you are a public employee subject to the provisions of the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seg. Hazmat 2 is a business
with which you are associated in your capacity as a Director.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics
Act would impose restrictions upon you to your capacity as a ublic employee (i.e., the
Emergency Management Radiological Planner/Trainer for the County EMA), rather than
upon you in your private capacity(ies) as the Chief of Hazmat 2 and/or a Member of the
Hazmat 2 Board of Directors.
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public
capacity as the Emergency Management Radiological Planner/Trainer for the County
EMA in matters that would financially impact you, a member of your immediate family,
or a business with which you or a member of your immediate family is associated such
as Hazmat 2. In each instance of a conflict of interest, you would be required to abstain
from participation.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed as to any contract between Hazmat 2 and the County EMA that would
be entered into during your employment as the Emergency Management Radiological
PlannerlTrainer for the County EMA and that would be valued at $500 or more.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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.
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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 o�►s
Advice pursuant to 51 Pa. Code § �3.2(h). The appeal may be
received at the Commission by handdelivery, 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.
Sincerely,
4Robin Hittie
Chief Counsel