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HomeMy WebLinkAbout00-595 RubensteinHerbert F. Rubenstein, Esquire Attorney At Law Suite 107 25 West Skippack Pike Broad Axe, PA 19002 -5152 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 26, 2000 Re: Conflict; Public Official /Employee; Member; Governing Body; Municipality; Employee; Construction Company; Business With Which Associated; Subdivision; Land Development; Code Enforcement Proceedings; Participate; Vote. Dear Mr. Rubenstein: This responds to your letter of June 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 seq., presents any prohibition or restrictions upon a member of a municipality's governing body as to: 1) voting or participating in matters related to subdivision and land development projects where the member is employed by a construction company, the services of which could be utilized in such projects in the future; 2) soliciting business from the developer or the developer's tenant(s) after official approval of such subdivision and land development projects; and 3) voting on code enforcement proceedings involving projects completed or being completed by the construction company. Facts: You seek an advisory on behalf of a member of a municipality's governing body ( "Member") who is also employed by a large local construction company ( "Company ") as its marketing representative. The Company engages in many aspects of the construction industry, including actual project construction and construction management. The Member's duties as a Company employee are to solicit and obtain business in the nature of building and construction projects. You state that the Member is not an owner, officer or director of the Company. The Member, in his official capacity, normally participates in the consideration and discussion of subdivision and land development applications and votes to approve or disapprove the same. Because the Company engages in a substantial amount of construction business in the municipality, the Member could possibly be called upon to consider, discuss and vote upon approval of a subdivision and land development for which the developer could thereafter contact and contract with the Company for the construction work. In addition, the Member, as a Company employee, might have an occasion to solicit business from developers whose applications have already been approved through proceedings of the governing body in which the Member participated. Situations could also arise in which the governing body and the Member could be asked FAX: (717) 787 -0806 • Web Site: www.ethics.statepa.us • e -mail: ethics@state.pa.us 00 -595 Rubenstein, 00 -595 July 26, 2000 Page 2 to vote for or against enforcement actions arising out of building code violations that would affect the Company. You ask the following questions: 1. Whether the Member would violate any provision of the Ethics Act, in particular, §1103(a), by participating in considerations and /or discussions of the governing body regarding subdivision and land developments that could result in the future utilization of the Company's services as a project contractor; 2. Whether the Member would violate the Ethics Act if, after the approval of a subdivision or land development, he would solicit business from the developer on behalf of the Company; 3. Whether the Member would violate the Ethics Act if, after the approval of a subdivision or land development, he would solicit business from the developer's tenant(s) on behalf of the Company; 4. Whether the Member would be permitted to vote on code enforcement proceedings involving projects completed or being completed by the Company; and 5. Whether the Member would be able to avoid violating the Ethics Act by complying with §1103(j) of the Ethics Act. 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 request 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 re uestor 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 trut fully disclosed all of the material facts. As a member of a municipality's governing body, the Member is a public official as that term is defined in the Ethics Act, and he is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 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: § 1102. Definitions "Conflict" or "conflict of interest." Use by a ublic 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 Rubenstein, 00 -595 July 26, 2000 Page 3 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. 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. Section 1103(j) of the Ethics Act provides as follows: § 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). Rubenstein, 00 -595 July 26, 2000 Page 4 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 Company which employs the Member is a "business with which he is associated," as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the Member would be prohibited from using the authority of his office or any confidential information for the private pecuniary benefit of himself or the Company. Furthermore, if a matter would come before the governing body that would result in a financial gain to the Member or the Company, he would have a conflict and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The specific inquiries you have posed shall now be addressed. With regard to your first inquiry, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, the Member would have a conflict as to participating in discussions or votes related to subdivision and land development projects where a financial relationship would exist or could be reasonably and legitimately anticipated of being developed. See, Amato, Opinion 89 -002. For example, if the Member could reasonably anticipate t at the Company would become the project contractor, he would have a conflict as to the subdivision and land development and would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. However, absent any actual or anticipated private pecuniary benefit, the essential elements for a violation of Section 1103(a) would not exist. With regard to your second and third inquiries, the Ethics Act only governs the Member's conduct as a public official, not as an employee of a private company. As for the Member's official action related to the approval of a subdivision /land development plan, based upon Amato, supra, the Member would have a conflict where, for example, his official action to approve the subdivision /land development would be predicated upon a reasonable expectation that he or the Company would receive a financial gain from the solicitation of business from the developer and /or the developer's tenant(s). Furthermore, pursuant to Sections 1103(b) and 1103(c) of the Ethics Act, there could not be any solicitation or acceptance of anything of monetary value based upon the understanding that the Member's vote, official action or judgment would be influenced thereby. With regard to your fourth inquiry, based upon Section 1103(a), the Member would be prohibited from voting on code enforcement proceedings involving projects completed or being completed by the Company where a financial gain would exist. Your fifth inquiry with regard to Section 11030) has been fully addressed above. Rubenstein, 00 -595 July 26, 2000 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: As a member of a governing body of a municipality ( "Member "), the em er is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The Company which employs the Member is a "business with which he is associated,' as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the Member would be prohibited from using the authority of his office or any confidential information for the private pecuniary benefit of himself or the Company. Furthermore, if a matter would come before the governing body that would result in a financial gain to the Member or the Company, as for example, code enforcement proceedings involving projects completed or being completed by the Company, he would have a conflict and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The Member would have a conflict as to participating in discussions or votes related to subdivision and land developments where a financial relationship would exist or could be reasonably and legitimately anticipated of being developed. The Member would also have a conflict where his official action to approve the subdivision /land development would be predicated upon a reasonable expectation that he or the Company would receive a financial gain from the solicitation of business from the developer and /or the developer's tenant(s). 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 thi (30 ) days of the date of this Advice pursuant to 51 Pa. Code ,§13.2(n . 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. gtIcerely, incent J. opko Chief Counsel