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HomeMy WebLinkAbout01-532 SweetRobert W. Sweet 122 East High Street Taylor, PA 18517 Dear Mr. Sweet: ADVICE OF COUNSEL March 28, 2001 01 -532 Re: Conflict; Public Official /Public Employee; Supervisor; Borough; Public Works Department; Private Employment or Business; Sewer Cleaning Services; Contract. This responds to your letter of February 23, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether a supervisor of a public works department of a borough is prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from contracting with the borough through a business that provides sewer cleaning services, where such services are provided upon: 1) a request by the borough manager; or 2) an independent assessment by the supervisor with subsequent review by the borough manager. Facts: You are employed as the Supervisor of the Public Works Department ( "PWD ") of a borough. You state that PWD, among other things, maintains the roads, parks, collection of recyclables, storm water and sewage. Your responsibility as Supervisor is to ensure that the seven PWD employees whom you oversee perform their regular tasks as well as other jobs that the borough manager or borough council may direct. You state that you do not belong to a union. You emphasize that you are not the Borough Manager, whose position exists pursuant to the Borough Code and local ordinance. You state that the Borough Manager is the chief administrative appointed officer of the municipality and your direct supervisor. The Borough Manager administers discipline to the seven PWD employees, including yourself. General duties of PWD employees include picking up recyclables for disposal at the county recycling facility, plowing snow, cleaning borough buildings, performing minor street repairs, fixing catch basins, cutting grass, and operating trucks and other heavy equipment. In addition, if the borough needs a part for a broken piece of equipment or cleaning supplies such as brooms or paper towels, the borough manager or someone at the Community Center will often request PWD employees to secure the requested item(s). If equipment is wearing out, you may request that the borough council or borough manager consider purchasing replacements. The borough sewer system consists of sanitary sewers, which contain effluent, and storm sewers, which contain storm water. There are, however, mixed sanitary or storm sewer lines. Sweet, 01 -532 March 28, 2001 Page 2 A borough -owned pump station services sanitary sewer lines where gravity does not allow the effluent to flow. The sewer lines and pump station occasionally break or malfunction. Residents normally call a borough council member, the borough manager or your office to complain about a blocked sewage line. When there is a complaint or scheduled inspection, you inspect the blockage or pump station. A blockage may involve effluent flowing into a basement or result in a line backing up. A blockage requires a visual inspection into the sewer line to determine its severity or location. If the problem is severe, you call the borough manager who, in turn, contacts the borough engineer. Time permitting, the borough engineer examines the problem and gives a cost estimate together with various alternatives to council. Council then considers the alternatives and, if necessary, requests bids to fix the broken pump station or sewer line. An emergency may require that a private service such as M.E. Ford or Roto Rooter be called upon to unclog a line by "flushing" out the blockage or pumping out the sewage. Less frequently, council will authorize a "scoping" company to place a camera into the line to determine the problem. You state that you have no interest in either a flushing or scoping company. If a flushing company cannot dislodge a blockage, it will ask for the assistance of a "vacuuming" service to suck water or sewage out of a blocked line. You state that you have an interest in a company that only provides vacuuming services. Your company does not perform flushing or scoping services or excavate broken lines or make repairs. You assert that the services your company rovides to the Bureau saves the Borough money by allowing the flushing company to do its job. Given the foregoing facts, you ask whether you would be permitted to provide services to the borough depending upon the availability of a sewer vacuuming contractor or price if 1) the borough manager requests your services; or 2) you deem it necessary based upon urgency, with subsequent review by the borough manager. Discussion: It is initially noted that pursuant to Sections 1107(10) and (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. As Supervisor for the Public Works Department ( "PWD ") of a borough, you are a public employee as that term is defined under the Ethics Act, and hence you are 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: Sweet, 01 -532 March 28, 2001 Page 3 $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. "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. §1102. Section 1103(f) of the Ethics Act provides as follows: $1103. Restricted activities. (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 Sweet, 01 -532 March 28, 2001 Page 4 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. 65 Pa. C. S. §1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Sweet, 01 -532 March 28, 2001 Page 5 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). 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. As to Section 1103(a) of the Ethics Act, the Commission has held that a public official /public employee may not use the authority of his public position or confidential information for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2 the use of governmental facilities, such as governmental telephones, postage, staff, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). Having established the above, your specific inquiry shall now be addressed. Section 1103(a) of the Ethics Act would not preclude you from engaging in business activity subject to the restrictions and qualifications as noted above. If a matter involving your business would come before you in your official capacity as Supervisor for PWD, you would have a conflict as to that matter and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit you from selecting your business to provide sewer cleaning services to the Borough, even if your decision would be subject to review by the Borough Manager. However, the Ethics Act would not prohibit you from providing services to the Borough in response to a request by the Borough Manager, assuming that you would have no involvement whatsoever as to the Borough Manager's decision to select your business to do the job. The above conclusion is distinguishable from McConahy, Opinion 96 -006, which involved a communications supervisor /telecommunicator for a county 9 -1 -1 emergency communications center who was also employed as an emergency medical technician Sweet, 01 -532 March 28, 2001 Page 6 for two emergency service providers. The emergency service providers that employed the communications supervisor /telecommunicator were among other providers dispatched by the 9 -1 -1 center, which utilized a computerized system that pre- determined appropriate units to dispatch. The Commission held that where the recommended provider(s) would be limited to the communications supervisor /telecommunication's employer(s), the communications supervisor/ telecommunicator could dispatch such provider(s) without violating Section 3(a) of the Ethics Act because the requisite element of a use of authority of office would be lacking. The Commission stated that in following the pre- determined computerized selection, the communications supervisor /telecommunicator would not be exercising any discretion. Unlike the public employee in McConahy, supra, you have the ability to exercise discretion in selecting a vacuuming service to provide services to the Borough. Hence, any involvement by you in the selection of your business would constitute a use of the authority of your office for a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Finally, if the services your company would provide to the Borough would be $500 or more, the requirements of Section 1103(f) of the Ethics Act would have to be strictly observed. Under Section 1103(f), you could not have any supervisory or overall responsibility as to the implementation or administration of the contract with the Borough. Parenthetically, although the contracting in question would not be prohibited under the Ethics Act provided the requirements of Section 1103(a), 1103(f) and 1103(j) are satisfied, a problem may exist as to such contracting under the respective code. In the instant situation, the Borough Code provides as follows: §46404. Penalty for personal interest in contracts or purchases Except as otherwise provided in this act, no borough official either elected or appointed, who knows or who by the exercise of reasonable diligence could know, shall be interested to any appreciable degree either directly or indirectly in any purchase made or contract entered into or expenditure of money made by the borough or relating to the business of the borough, involving the expenditure by the borough of more than one thousand dollars ($1000) in any calendar year, but this limitation shall not apply to cases where such officer or appointee of the borough is an employe of the person, firm or corporation to which the money is to be paid in a capacity with no possible influence on the transaction, and in which he cannot be possibly benefited thereby either financially or otherwise. But in the case of a councilman or mayor, if he knows that he is within the exception just mentioned he shall so inform council and shall refrain from voting on the expenditure or any ordinance relating thereto, and shall in no manner participate therein. Any official or appointee who shall knowingly violate the provisions of this section shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the borough and to ouster from office, and shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand dollars ($1000), or not exceeding one hundred eighty days' imprisonment, or both. Sweet, 01 -532 March 28, 2001 Page 7 53 P.S. §46404. Since such contracting may be prohibited by the above quoted provision, it is suggested that you seek legal advice in that regard. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee 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. 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 Borough Code. Conclusion: As Supervisor for the Public Works Department ( "PWD ") of a borough, you are a public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would not preclude you from engaging in business activity subject to the restrictions and qualifications as noted above. If a matter involving your business would come before you in your official capacity as Supervisor for PWD, you would have a conflict as to that matter and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit you from selecting your business to provide sewer cleaning services to the Borough, even if your decision would be subject to review by the Borough Manager. However, the Ethics Act would not prohibit you from providing services to the Borough in response to a request by the Borough Manager assuming that you would have no involvement whatsoever as to the Borough Managers decision to select your business to do the Job. Further, if the services your business would provide to the Borough would be $500 or more, the requirements of Section 1103(f) of the Ethics Act would have to be strictly observed. Under Section 1103(f), you could not have any supervisory or overall responsibility as to the implementation or administration of the contract with the Borough. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. It is suggested that legal advice be obtained with regard to the possible applicability of the Borough Code. 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 (3U) days of the date of tins Sweet, 01 -532 March 28, 2001 Page 8 Advice ursuant 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 fife such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel