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