Loading...
HomeMy WebLinkAbout01-531 WeissEric D. Weiss, Director Bureau of Code Enforcement and Rehabilitation 435 Hamilton Street Allentown, PA 18101 -1699 Dear Mr. Weiss: ADVICE OF COUNSEL March 23, 2001 01 -531 Re: Conflict; Public Official /Employee; City; Housing Code Inspector; Use of Confidential Information; Private Business Performing Work Mandated by the Housing Code; Business With Which Associated. This responds to your letter of February 4, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a housing code inspector as to privately performing work mandated by the housing code for his for -proft business. Facts: You are Chief of the Bureau of Code Enforcement and Rehabilitation for the ity of Allentown ( "City "). In that capacity, you seek an advisory as to the conduct of a City employee whom you supervise. You oversee two divisions — one involving the permitting and inspection of construction activities as per the Building Code, and the other involving the inspection of existing properties to ensure their compliance with the City's Property Maintenance and Rehabilitation Code, otherwise known as the Housing Code. You have received a citizen complaint concerning one of the Housing Code inspectors in the Bureau. The complaint alleges that the inspector is privately performing corrective electric work required under the Housing Code. The complainant believes that the inspector is using "insider information" to obtain work. As far as you know, the inspector is not performing corrective work for any property he has inspected as part of his official duties or soliciting any work using other Housing Code inspectors' logs, even though the inspector does have access to "insider information." Your job requires you to ensure that your inspectors comply with the Allentown Ethics Code and that no violations occur with your knowledge. Since this matter has come to your attention, you ask whether a city housing inspector would be permitted to perform corrective work mandated by another city housing inspector for his /her private for- profit business. Weiss, 01 -531 March 23, 2001 Page 2 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 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 Housing Code Inspector ( "Inspector ") for the City of Allentown is a public employee as that term is defined in the Ethics Act, and hence the Inspector is 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: $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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: Weiss, 01 -531 March 23, 2001 Page 3 $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 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 obtained by being in that position 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, equipment, 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 or clients of the business would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; 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). Weiss, 01 -531 March 23, 2001 Page 4 Having established the above, your specific inquiry shall now be addressed. You state that the Inspector has access to "insider information" not available to the general public. Unlike others, the Inspector would have instant access to records and files pertaining to noncompliant properties, which would give him an advantage in soliciting work for his business. Hence, the Inspector would have a conflict as to Housing Code repairs and therefore, could not, as part of his private business, perform corrective work mandated by another city housing inspector. As to all other types of work/repairs not involving the Housing Code, no conflict of interest would exist. The above conclusion is consonant with Riley, Opinion 00 -008, wherein the Commission held that a county warrant enforcement bureau administrator who, by virtue of his public employment, would have direct and immediate access to information pertaining to all outstanding warrants in that county, would have a conflict of interest and hence, could not serve county warrants as a deputy constable for compensation. 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 respective municipal code. Conclusion: The Housing Code Inspector for the Bureau of Code Enforcement and Rehabilitation is a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Because the Inspector has access to "insider information" pertaining to noncompliant properties that is not available to the general public, he has an advantage in soliciting work for his business. Thus, the Inspector would have a conflict as to Housing Code repairs and could not, as part of his private business, perform corrective work mandated by another city housing inspector. As to all other types of work/repairs not involving the Housing Code, no conflict of interest would exist. 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 §13.20. 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