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HomeMy WebLinkAbout97-001 ArmstrongSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair . Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein DATE DECIDED: 2/21/97 DATE MAILED: 3/7/97 97 -001 James K. Armstrong 72 Hillside Lane Fallsington, PA 19054 Re: Conflict, Public Official /Employee, Township, Supervisor, Business With Which He is Associated, Heating /Air Conditioning Business, Subcontract, Contract, Building, Renovation, Landfill. Dear Mr. Armstrong: This Opinion is issued in response to your advisory request letter of January 2, 1997 I. ISSUE: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Township Supervisor who is the principal shareholder of a heating and air conditioning business which received a subcontract as to a renovation of a building which is owned by a company that has other matters pending before the Board of Supervisors. II. FACTUAL BASIS FOR DETERMINATION: You are a Supervisor for Falls Township, a second class township located in Bucks County, Pennsylvania. In a private capacity, you are the principal shareholder of a small heating and air conditioning business corporation that does installations, servicing, and oil deliveries to both commercial and residential customers in the Lower Bucks County area, including Falls Township. Your company submitted a bid according to the required specifications on a subcontract involving the renovation of an office building in Falls Township. The bids were solicited by Carroll Contractors, Inc., the general contractor with whom you had Armstrong, 97 -001 March 7, 1997 Page 2 exclusive dealings. The general contractor was retained by the owner of the building, Waste Management, Inc., a major landowner and business in Falls Township. You were awarded the subcontract for the heating and air conditioning work as the low bidder. Waste Management, Inc. has matters (other than the renovation project) pending before the Falls Township Board of Supervisors on a periodic basis including, most recently, a request for a change of hours of operation for a landfill. It has been suggested at public meetings that you have a conflict of interest in matters involving Waste Management, Inc. because of your work for the general contractor on the building owned by Waste Management. You request an advisory as to whether you would have a conflict of interest under the Ethics Law. By letter dated February 12, 1997, you were notified of the date, time, and location of the public meeting at which your request for an advisory was to be considered. 11I. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), 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, this 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 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Falls Township, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same Armstrong, 97 -001 March 7, 1997 Page 3 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 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. Armstrong, 97 -001 March 7, 1997 Page 4 If a conflict exists, Section 3(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 Law, then in that event voting is permissible provided the disclosure requirements noted above are followed. Garner, Opinion 93 -004. We must determine whether the submitted facts could give rise to the use of authority of office on your part in other matters involving Waste Management so as to constitute a private pecuniary benefit for yourself or the heating /air conditioning business with which you are associated based upon your existing business connection with Waste Management. We must analyze the business relationship between you and Waste Management, the owner of the building, which relationship exists by virtue of the renovation subcontract. The financial connection as to the renovation project is not a direct one for two reasons. First, the building owner retained a general contractor who awarded a subcontract to you as low bidder for the heating /air conditioning work. Second, the matter that is currently pending before the Board involves a landfill operation issue which is unrelated to the building renovation project. Although there are Commission cases on these types of attenuated business relationships, there is no precedent involving this type of factual scenario. In Snyder, Order 979 -2, affirmed Snyder v. SEC, Slip Opinion filed in Commonwealth Court on December 18, 1996 at 817 C.D. 1996, allocatur petition pending, we found that a township supervisor violated Section 3(a) of Act 9 of 1989 when he participated in matters involving a development project when he obtained a subcontract in that same development. In the instant matter, since Waste Management's issue before the Board is in an area unrelated to the renovation project, Snyder is not on point. In Miller, Opinion 89 -024, we held that a public employee could not participate in matters involving a client of a business with which she was associated; in this case the client is the general contractor for the renovation project, not the owner. In Amato, Opinion 89 -002, we ruled that a public official could not participate in a matter where he had a reasonable and legitimate expectation of receiving private business, but in this case, the (sub)contract has already been awarded. Although the certainty of financial gain is not required to establish a conflict, the interest cannot be considered to be remote. Bankenstein, 94 -006. In the instant matter, we find that you do not have a conflict in participating as to Waste Management matters that do not involve the building on which you have a subcontract, subject to the following qualifications. First, it is assumed that you have no financial interest in Waste Management, so that it is not a business with which you are associated as that term is defined under the Ethics Law. Second, since the subcontract has already been awarded which is between you and the general contractor (not Waste Management), we assume that there are no circumstances in the provisions of the general contract or subcontract which would give Waste Management the ability to terminate or modify your subcontract. If Waste Management, rather than the general contractor, had such contractual rights, that would create a conflict on your part in participating on matters of Waste Management Armstrong, 97 -001 March 7, 1997 Page 5 before the Township Board. Subject to the above, you may participate in other matters involving Waste Management. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. IV. CONCLUSION: A Township Supervisor is a public official subject to the provisions of the Ethics Law. A Township Supervisor who is the principal shareholder of a heating and air conditioning business which received a subcontract as to a renovation of a building which is owned by a company that has matters pending before the Board of Supervisors does not have a conflict in participating as to other matters involving that company which is not a business with which he is associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. B the Commission, Nup Au6 ateil_. Daneen E. Reese Chair