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HomeMy WebLinkAbout20-537 Avolio PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL October 14, 2020 To the Requester: Scott E. Avolio, Esquire Avolio Law Group, LLC 20-537 Dear Attorney Avolio: This responds to your letter dated August 26, 2020, by which you requested an Issue: Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a Member and Chairman of the Board of the Municipal Authority of with regard to participating in vote(s) of the Municipal Authority Board pertaining to projects or other matters of/before the Municipal Authority if his wife would become either a subcontractor to or a part-time employee of m. Facts: You request an advisory from the Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. Mr. Roadman is a Member and Chairman of the Municipal Authority Board. The Municipal Authority provides drinking water and wastewater services to customers in Allegheny County, Armstrong County, Fayette County, Indiana County, and Westmoreland County. Gibson-is the firm. The Firm serves as the engineer for various political subdivisions in Pennsylvania and maintains offices in multiple counties in Pennsylvania, including an office in Fayette -Roadman -, will be retiring from her employment as the Executive Director of the National Road Heritage Corridor in November 2020. The Firm would like to utilize Ms. Holdorf-Roadman to increase business relations in Fayette County and Washington County and consult on various projects/business developments handled by the Fayette County Firm Office and the Washington County Firm Office. Avolio, 20-537 October 14, 2020 Page 2 Ms. Holdorf-Roadman has been offered either part-time employment with the Firm or a subcontractor engagement with the Firm. As a part-time Firm employee or as a subcontractor to the Firm, Ms. Holdorf-Roadman would be compensated at a fixed wage of $30 per hour for no more than twenty hours per week, and she would not be eligible for a commission or performance-related bonuses. The compensation paid to Ms. Holdorf-Roadman would not be affected by services that the Firm would perform for the Municipal Authority. The question presented by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Roadman as a Member and Chairman of the Board of the Municipal Authority with regard to participating in vote(s) of the Municipal Authority Board pertaining to projects or other matters of/before the Municipal Authority if his wife would become either a subcontractor to or a part-time employee of the Firm. You suggest that the answer to the question may depend upon whether such projects or other 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 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 disclosed all of the material facts. As a Member and Chairman of the Municipal Authority Board, Mr. Roadman is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Avolio, 20-537 October 14, 2020 Page 3 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(a), (j). 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. "Immediate family." A parent, spouse, child, brother or sister. "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. S 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 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act would require the public official/public employee to abstain and Avolio, 20-537 October 14, 2020 Page 4 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. Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: 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, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics benefit for himself, his family, or his business, and then must take action in the form of Id., 610 Pa. at 528, 22 A.3d at 231. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. - as that term is defined in the Ethics Act. If Ms. Holdorf-Roadman would become a subcontractor to the Firm, the Firm would not be considered a business with which Ms. Holdorf-Roadman is associated, as there is no basis in the submitted facts to conclude that Ms. Holdorf- unless there would be a basis for a conflict of interest such as a private pecuniary benefit to Mr. Roadman, a member of his immediate family such as his wife, or a business with which he or a member of his immediate family is associated, Mr. Roadman would not have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Municipal Authority Board pertaining to projects or other matters of or before the Municipal Authority. If Ms. Holdorf-Roadman would become a part-time employee of the Firm, the Firm would be a business with which Ms. Holdorf-Roadman would be considered to be associated in her capacity as an employee. Under such circumstances, subject to the Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Roadman would have a conflict of interest as to action(s) that would financially impact the Firm, including but not limited to vote(s) of the Municipal Authority Board as to whether the Firm should be reappointed engineering firm, assignment of work to the Firm, payment of Firm invoice(s), or review or approval of work performed by the Firm. Where a conflict of interest would arise, it would exist as a result of the employer-employee relationship between Ms. Holdorf- Roadman and the Firm; it would not depend upon whether Ms. Holdorf-Roadman would be involved with the particular project or matter or the geographical location of the work. In each instance of a conflict of interest, Mr. Roadman would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Avolio, 20-537 October 14, 2020 Page 5 If Ms. Holdorf-Roadman would become a part-time employee of the Firm, you might wish to seek further advice from the Commission regarding the restrictions of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), pertaining to contracting. 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 Municipality Authorities Act. Conclusion: Based upon the submitted facts that: (1) Mr. drinking water and wastewater services to customers in Allegheny County, Armstrong County, Fayette County, Indiana County, and Westmoreland County; (3) Gibson-Thomas as the engineer for various political subdivisions in Pennsylvania and maintains offices in --ill be retiring from her employment as the Executive Director of the National Road Heritage Corridor in November 2020; (6) the Firm would like to utilize Ms. Holdorf-Roadman to increase business relations in Fayette County and Washington County and consult on various projects/business developments handled by the Fayette County Firm Office and the Washington County Firm Office; (7) Ms. Holdorf-Roadman has been offered either part-time employment with the Firm or a subcontractor engagement with the Firm; (8) as a part-time Firm employee or as a subcontractor to the Firm, Ms. Holdorf-Roadman would be compensated at a fixed wage of $30 per hour for no more than twenty hours per week, and she would not be eligible for a commission or performance-related bonuses; and (9) the compensation paid to Ms. Holdorf-Roadman would not be affected by services that the Firm would perform for the Municipal Authority, you are advised as follows. As a Member and Chairman of the Municipal Authority Board, Mr. Roadman is a public official subject to the provisions of the Public Official and Employee Ethics Act 65 Pa.C.S. § 1101 et seq. -Roadman, is If Ms. Holdorf-Roadman would become a subcontractor to the Firm, the Firm would not be considered a business with which Ms. Holdorf-Roadman is associated, as there is no basis in the submitted facts to conclude that Ms. Holdorf- unless there would be a basis for a conflict of interest such as a private pecuniary benefit to Mr. Roadman, a member of his immediate family such as his wife, or a business with which he or a member of his immediate family is associated, Mr. Roadman would not have a conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Municipal Authority Board pertaining to projects or other matters of or before the Municipal Authority. If Ms. Holdorf-Roadman would become a part-time employee of the Firm, the Firm would be a business with which Ms. Holdorf-Roadman would be considered to be associated in her capacity as an employee. Under such circumstances, subject to the Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Roadman would have a conflict of interest as to action(s) that would financially impact the Firm, including but not limited to vote(s) of the Municipal Authority Board as to whether engineering firm, assignment of work to the Firm, payment of Firm invoice(s), or review or approval of work performed by the Firm. Where a conflict of interest would arise, it Avolio, 20-537 October 14, 2020 Page 6 would exist as a result of the employer-employee relationship between Ms. Holdorf- Roadman and the Firm; it would not depend upon whether Ms. Holdorf-Roadman would be involved with the particular project or matter or the geographical location of the work. In each instance of a conflict of interest, Mr. Roadman would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. If Ms. Holdorf-Roadman would become a part-time employee of the Firm, you might wish to seek further advice from the Commission regarding the restrictions of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), pertaining to contracting. 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. 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. Sincerely, Robin M. Hittie Chief Counsel