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HomeMy WebLinkAbout01-536 KnapikJohn A. Knapik, Jr. R.D. #1, Box 195 -0 Clarksville, PA 15322 ADVICE OF COUNSEL April 6, 2001 01 -536 Re: Conflict; Public Official /Employee; PennDOT; Support Services Engineer; Immediate Family Member; Daughter Employed as a Transportation Construction Inspector for Private Consulting Firm That Works on PennDOT Projects. Dear Mr. Knapik: This responds to your letter of March 5, 2001 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any prohibition or restrictions upon a Support Services Engineer for PennDOT whose daughter is employed as a Transportation Construction Inspector for a private consulting firm that works on PennDOT projects. Facts: You are employed as the Support Services Engineer in Construction for District 12 -0 of PennDOT. You have submitted a copy of a portion of your job description, which is incorporated herein by reference. Your duties include the following: 1. Supervising several units and project managers in charge of the District's surface improvement contracts, enhancement project contracts, and Federal local bridge contracts; and 2. Supervising a project manager who prepares the advertisements for consultant inspectors and working with your unit which functions in the consultant inspection process to ensure that projects are advertised, ensure that the selection committee gets the consultants' letters of interest, coordinate the scoping meeting between the selected consulting firm and the Assistant Construction Engineer, provide the Central Office with information to prepare the legal agreements, and prepare work orders and supplements to these agreements. You state that the District Engineer, Assistant District Engineer- Construction, and the Assistant Construction Engineers make the selection for short listing, which list is forwarded to Harrisburg for final approval. You further state that the Project Managers are responsible for interviewing prospective consultant inspectors, approving the number of hours worked by said inspectors, their traveling expenses and related items. As to surface improvement contracts, you or the Assistant Construction Engineers give the final approval. The Construction Secretary processes the invoices for payment to the consultant firms after the necessary approvals are obtained from the Project Manager and /or Assistant Construction Engineer. Knapik, 01 -536 April 6, 2001 Page 2 Your daughter is a seasonal employee who works as a Transportation Construction Inspector for a consulting firm that provides PennDOT with construction inspectors. Your daughter works directly for a PennDOT project manager, who is in charge of a construction project. You state that neither your daughter nor any of the project managers work directly for you. You further state that you are not on the District's Consultant Selection Committee, which recommends consulting firms to provide construction inspectors. Given that your daughter is employed by a private consulting firm that works on PennDOT projects, you ask whether you, as a PennDOT employee, would have a conflict of interest. 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 a Support Services Engineer in Construction for PennDOT, you are a public employee as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act'), and hence you are subject to the provisions of that law. 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 that pertain 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 Knapik, 01 -536 April 6, 2001 Page 3 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. 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 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. Knapik, 01 -536 April 6, 2001 Page 4 (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 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 applying the above provisions of the Ethics Act to the circumstances which you have submitted, pursuant to Section 1103(a) of the Ethics Act, 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. Your daughter is a member of your immediate family as that term is defined under the Ethics Act. Further, the private consulting firm, which employs your daughter, is a business with which she is associated. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict as to matters involving your daughter or the consulting firm. Hence, you could not participate in matters pertaining to PennDOT projects that would be inspected by your daughter. Further, you could not participate in the consultant selection process. In this regard, you have stated that neither the Project Manager for whom your daughter works nor your daughter work for you. However, in any instance where a conflict would arise, you must recuse yourself and file a memorandum outlining your conflict with your supervisor as per the requirements of Section 1103(j) of the Ethics Act. As for Section 1103(f), the restrictions as set forth above would apply under the facts which you have submitted, assuming the contract /subcontract between the private consulting firm that employs your daughter and PennDOT would be valued at $500 or more. Consequently, the restrictions of Section 1103(f) as set forth above would have to be observed under the facts as you have presented them. Knapik, 01 -536 April 6, 2001 Page 5 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Support Services Engineer in Construction for PennDOT, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Your daughter is a member of your immediate family as that term is defined under the Ethics Act. Further, the private consulting firm, which employs your daughter, is a business with which she is associated. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict as to matters involving your daughter or the consulting firm. Hence, you could not participate in matters pertaining to PennDOT projects that would be inspected by your daughter. Further, you could not participate in the consultant selection process. In each instance of a conflict, you must recuse yourself and file a memorandum outlining your conflict with your supervisor as per the requirements of Section 1103(j) of the Ethics Act. In addition, as to any contract of $500 or more between the private consulting firm and PennDOT, the requirements of Section 1103(f) must be satisfied. 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