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HomeMy WebLinkAbout89-002 AmatoJames D. Amato, Esquire Three Gateway Center 15th Floor, North Wing Pittsburgh, PA 15222 Dear Mr. Amato: I. Issue: E ; . STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: February 22, 1989 DATE MAILED: March 7, 1989 Re: Conflict of Interest, Township Commissioner, Voting on Projects Reviewed by Planning Commission, Receipt of Contract Work from Subcontractors as to Approved Projects; Appeal of Advice of Counsel; Timeliness This responds to your appeal of the Advice of Counsel No. 88 -661 issued on December 8, 1988. Whether under the Ethics Act a first class township commissioner may vote on development projects when the developers hire general contractors who hire subcontractors who contract with a business with which the commissioner is associated. II. Factual Basis for Determination: 89 -002 By letters of October 6, 1988 and November 2, 1988 you requested advice of the State Ethics Commission as to whether Mr. Joseph Bianco who is a First Class Township Commissioner in Robinson Township could vote or participate on matters submitted by project developers when those developers would hire general contractors who would hire subcontractors who would contract with the business with which Mr. Bianco is associated. Pursuant to your letter of request, you were advised under Section 3(a) of the Ethics Act that Mr. Bianco could not vote on any projects where he or a business with which he is associated could anticipate receiving subcontract work as to that project and secondly that Mr. Bianco could not vote on matters which arise after he or the business with which he is associated had previously obtained contract work from a proponent of a matter before the Board. Although the Advice of Counsel 88 -661 was issued on James D. Amato, Esquire Page 2 December 8, 1988, your appeal of that advice by letter of December 21, 1988, was not received by the Commission until December 27, 1988. You sent the same appeal by certified mail which was received on December 28, 1988. Factually, Mr. Bianco is a First Class Township Commissioner in Robinson Township wherein the Board primarily reviews or passes upon projects which have been originally presented to the Planning Commission which in turn makes recommendations to the Board. Mr. Bianco has been privately employed since 1977 with the Beaver Valley Builders Supply Company as a sales manager; his duties consist of bidding on jobs which are presented by various subcontractors but not developers. Although Mr. Bianco is not a shareholder or stockholder in the company, he is a salaried employee and receives no commission on sales. If a given project receives a recommendation from the Planning Commission and is then approved by the First Class Township Commissioners, the developer hires a general contractor who hires various subcontractors who in turn contact Mr. Bianco in his capacity as sales manager for a bid. In particular, the contractor who receives the job is the low bidder from a group of contractors who vie for the project. The contractor in turn will put out for bid that portion of the project that he is unable to handle. Similarly, subcontracts are also awarded to the lowest bidders. Finally, the subcontractors will contact Mr. Bianco and other companies for supplies which will be awarded on a low bid basis. You reference a series of meetings of the First Class Township Board of Commissioners wherein Mr. Bianco voted to approve projects covering a period of time from December 7, 1987 through June 30, 1988. Mr. Bianco was not the deciding vote in any of those motions. Mr. Bianco has indicated that he would not vote on a matter that would have a direct impact upon himself or the business with which he is associated. In this regard, Mr. Bianco cited a project wherein the Commonwealth is participating in a joint effort with the developer. Mr. Bianco indicated that he would refrain from voting on that matter because he was the general contractor. You express concern about future development projects in the township wherein bids may be submitted by Mr. Bianco's employer and question whether Mr. Bianco may vote under the Ethics Act on future projects. After you appealed the Advice of Counsel, you were advised by letter of December 29, 1988 that you would be notified of the date, time and location of the meeting of the Commission as well as the fact that your appeal was received beyond the fifteen (15) day appeal period. Notice was given of the date, time and location of this meeting by letter of February 1, 1989. James D. Amato, Esquire Page 3 III. Discussion: In order for this Commission to consider your request for a review of the Advice of Counsel, it is necessary for you to have timely appealed the Advice. Regulations 2.12 of the State Ethics Commission, which was specifically referenced in the last paragraph of the Advice, provides: 52.12 Appeal from an advice. (b) Any such appeal shall be made, in writing, to the Commission within 15 days of service of the Advice. 51 Pa. Code 52.12(b). The question now arises as to the computation of the fifteen (15) day appeal period. It is clear that the appeal period begins to run from the time of mailing of the original advice from the agency to the time of the actual receipt of the appeal at the agency. The Regulations which set forth the practice and procedure before Commonwealth administrative agencies provide: In computing a period of time involving the date of the issuance of an order by an agency, the day of issuance of an order shall be the day the office of the agency mails or delivers copies of the order to the parties... 1 Pa. Code S31.13(a) It is further provided in the foregoing Regulations as follows: Pleadings, submittals or other documents required or permitted to be filed under this part, the regulations of the agency or any other provision of law shall be received for filing at the office of the agency within the time limits, if any, for the filing. The date of receipt at the office of the agency and not the date of deposit in the mails is determinative. (Emphasis supplied) 1 Pa Code 531.11. From the above, it is clear that the time period for an appeal began to run from the date of mailing, which in this case was December 8, 1988. Therefore, to be timely, the appeal should have been received by the State Ethics Commission no later than (15) days after service, which would be on December 23, 1988. However, the appeal was received by this Commission on December 27, 1988, which was four days beyond the filing deadline. James D. Amato, Esquire Page 4 Although the appeal was untimely, you argue that extenuating circumstances exist which would provide an exception to the timeliness rule. Under decisional law, an appeal, which is untimely on its face, may be considered in either of two situations: where there is a breakdown in the postal system or in the operations of the agency in opening and processing the mail. Saint Christopher's Hospital for Children v. DPW, 78 Pa. Commw. Ct. 113, 466 A.2d 1134 (1983); Appeal of Farrell, 69 Pa. Commw. Ct. 32, 450 A.2d 266 (1982). Although the appeal was required to be filed on December 23, 1988, this Commission does take note of the fact that the staff of the State Ethics Commission was dismissed early on Friday, December 23, 1988. Additionally, Monday, December 26, 1988 was a state and federal holiday. Therefore, based upon the above circumstances, the receipt of the appeal on Tuesday, December 27, 1988 will be accepted. This Commission must now review the Advice of Counsel, 88 -661 as to the substantive issue in this case. Mr. Bianco, as a First Class Township Commissioner in Robinson Township, is a "public official" as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code §1.1. As such, his conduct is subject to the provision of the Ethics law. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. S403(a). Section 2. Definitions. "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 holder of stock. 65 P.S. §402. Since Mr. Bianco is an employee of Beaver Valley Builder Supply Company, that firm is a "business with which he is associated" as that term is defined under the Ethics Act. Therefore, under Section 3(a) of the Ethics Act Mr. Bianco could not use public office through voting or participating to obtain a financial gain for the business with which he is associated, Beaver Valley Builder Supply Company. James D. Amato, Esquire Page 5 Under Section 3(a) of the Ethics Act, this Commission has determined that a public official or employee may not use public office to advance the personal financial interest of himself or a business with which he is associated. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yocabet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987); Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988), petition to appeal denied by the Pennsylvania Supreme Court on November 30, 1988 at 440 W.D. 1988. In applying the above provision of law, this Commission opined in Sowers, Opinion 80 -050, that a public official's voting was restricted by the Ethics Act as to projects submitted by developers when a financial relationship existed or could be reasonably and legitimately anticipated of being developed after such a vote. However, in Markham, Opinion 85 -013, this Commission determined that a public official would not be precluded in voting in a matter where his interest would be considered as remote. In the instant matter, it does not appear that the voting by Mr. Bianco has any direct effect upon a subcontract being awarded to Mr. Bianco's company. The business activity of Beaver Valley Builders Supply Company is twice removed from the initial vote to approve a development project. All contracts, subcontracts and supply contracts are awarded to the lowest bidder. Additionally, Mr. Bianco does not work on a sales commission basis but rather a straight salary. In the above process, the voting on a development project does not result in any identifiable subcontractor who would be dealing with Mr. Bianco's company. Therefore, based upon the above facts and circumstances, Mr. Bianco may serve and act as Commissioner in Robinson Township while maintaining his employment at Beaver Valley Builders Supply Company. IV. Conclusion: As a Commissioner for Robinson Township, Mr. Bianco is a public official subject to the provisions of the Ethics Act. Under the facts and circumstances outlined above, Mr. Bianco may serve and act as Commissioner while maintaining his employment with Beaver Valley Builders Supply Company, a business with which he is associated. The Advice of Counsel, No 88 -661 is reversed. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. such. James D. Amato, Esquire Page 6 This letter is a public record and will be made available as Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, Joseph W. Marshall, III Chairman