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HomeMy WebLinkAbout00-623 AumillerSteven D. Aumiller R.D. 2, Box 1755 McClure, PA 17841 Re: Conflict; Public Employee; Water and Wastewater Treatment Plant Operator; Municipal Authority; Land Swap With Municipal Authority. Dear Mr. Aumiller: ADVICE OF COUNSEL November 1, 2000 00 -623 This responds to your letters dated September 18, 2000 and September 28, 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., would present any prohibition or restrictions upon a water and wastewater treatment plant operator for a municipal authority with regard to a proposed land swap with the municipal authority. Facts: As a Water and Wastewater Treatment Plant Operator for the Spring Township Municipal Authority ( "Authority ") in Snyder County, you seek an advisory from the State Ethics Commission. It is initially noted that when the Commission received your September 18, 2000 letter requesting an advisory, you were asked to submit to the Commission either a copy of your job description or a very detailed description of your job duties. Your response was limited to the following: I am considered a Water and Wastewater Treatment Plant Operator for the Spring Township Municipal Authority. My job duties include upkeep and maintenance of the water and wastewater treatment plants, the distribution system of the water plant, and the collection system of the wastewater treatment plant. I am also responsible for all sampling and testing required by our NPDES permit. I have a Class C Type 1 Wastewater Treatment Plant License Certificate, No. T2157 and a Class A Type 1 Water Treatment Plant License Certificate, No. W9033. Additional duties include the reading of the water meters and helping to prepare bills to be mailed each quarter. I do not handle any of the funds collected. The Secretary- Treasurer of the authority collects and deposits all funds in connection with the quarterly billings. Aumiller, 00 -623 November 1, 2000 Page 2 Aumiller Letter of September 28, 2000. The question which you have posed pertains to a proposed land swap between you and the Authority. You state that you own land that borders the Authority's land and lies within the Authority's watershed. You would like to build a house on your land. The Authority would like to trade land that is located outside of its watershed for your land. If you would proceed with the land swap, you would acquire property on which to build your home and the Authority could keep the watershed as pristine as possible, thereby easing the Authority's concerns about possible watershed contamination. You ask for an advisory as to the propriety under the Ethics Act of the above described land swap. Discussion: It is 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 requestor 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 requestor 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 truthfully disclosed all of the material facts. The restrictions of the Ethics Act to be reviewed relative to your request are Sections 1103(a), (f), and (j), which provide as follows: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or Aumiller, 00 -623 November 1, 2000 Page 3 65 Pa.C.S. § §1103(a), (f), (j) (Emphasis added). Based upon the limited facts which you have submitted, you are advised that the restrictions of Sections 1103(a), (f), and (j) of the Ethics Act would not apply to you because you are clearly not a "public official" and your job duties as you have described them would not bring you within the Ethics Act's definition of "public employee." The Ethics Act defines the term "public employee" as follows: Section 1102. Definitions 65 Pa.C.S. §1102. 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. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. Aumiller, 00 -623 November 1, 2000 Page 4 The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, Aumiller, 00 -623 November 1, 2000 Page 5 investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superinten- dents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1. In applying the definition of "public employee" and the related regulatory criteria to the description of your job duties which you have supplied, based upon an objective review, you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the Ethics Act's definition of the term "public employee." Thus, the necessary conclusion is that in your capacity as a Water and Wastewater Treatment Plant Operator for the Spring Township Municipal Authority, you are not to be considered a "public employee" as that term is defined in the Ethics Act. Since you are not a "public employee' as defined by the Ethics Act, you are not subject to the restrictions of Sections 1103(a), (f), or (j) of the Ethics Act. Therefore, those Sections of the Ethics Act would not restrict you as to the proposed land swap between you and the Authority. This Advice is conditioned upon the assumption that the description of job duties which you have submitted is accurate and complete. The only provisions of the Ethics Act that would apply to you are Sections 1103(b) and 1103(c), which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Lastly, 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. Aumiller, 00 -623 November 1, 2000 Page 6 Conclusion: In your capacity as a Water and Wastewater Treatment Plant Operator for the Spring Township Municipal Authority, the restrictions of Sections 1103(a), (f), and (j) of the Public Official and Employee Ethics Act ( "Ethics Act ") would not apply to you because you are not a "public official" and your job duties as submitted would not bring you within the Ethics Act's definition of "public employee." Therefore, Sections 1103(a), (f), and (j) of the Ethics Act would not restrict you as to a proposed land swap between you and the Authority. This Advice is conditioned upon the assumption that the description of job duties which you have submitted is accurate and complete. The only provisions of the Ethics Act that would apply to you are Sections 1103(b) and 1103(c), which apply to everyone. 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 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, Vincent J. Dopko Chief Counsel