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HomeMy WebLinkAbout01-541-CL StaabValerie Staab 1223 Park Road Espyville, PA 16424 Dear Ms. Staab: ADVICE OF COUNSEL June 19, 2001 01-541-CL Re: Conflict; Public Official /Employee; Township; Building Inspector /Zoning Officer; Member; Joint Municipal Authority; Contractor; Immediate Family Member; Son; Daughter; Business With Which Associated; Clarification of Advice; Advice of Counsel No. 01 -541. This responds to your letter of May 19, 2001, by which you requested clarification of Staab, Advice 01 -541. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a township employee as to inspecting sewage road cuts in the township where she is the inspector /zoning officer while she is also a member of a joint municipal authority that awards contracts to contractors to perform such sewage road cuts. Facts: You initially sought an advisory from the State Ethics Commission by letter dated March 12, 2001. In response to your request, Staab, Advice 00 -541 was issued to you on April 20, 2001, which Advice is incorporated herein by reference. You now seek clarification as to the following statement which appears on page 4 of the Advice: With regard to your first question, you would have conflicts as to inspecting sewage road cuts in the Township in certain cases." Staab, Advice 01 -541 at 4. As to the above, you ask whether, as a zoning or building permit officer, you should refrain from inspecting projects or acting on applications involving contractors with whom you may have had business dealings on a contractual basis (e.g., contractors who have worked on your husband's house or have worked for the South Shenango Joint Municipal Authority), but who do not qualify as businesses with which you are associated. Discussion: As noted in Staab, Advice, supra, you are a public employee as that term is defined in the Ethics Act and hence you are subject to the provisions of the Act. Upon termination of employment, you would become a former public employee subject to Staab, 00- 541 -CL June 19, 2001 Page 2 the provisions of Section 1103() of the Ethics Act. In that Staab, supra, is incorporated by reference, the quotations and commentary as to the Ethics Act will not be repeated. As for your specific inquiry, you are advised that as a building inspector /building officer, you would have a conflict as to inspecting projects or acting on applications involving contractors with whom you have an existing or ongoing business relationship. See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. As to contractors with whom you have a past business relationship, no conflict of interest would exist. Thus, you would not have a conflict as to a contractor who worked on your husband's house in the past, assuming that the work is now complete and there is no reasonable expectation of developing a further business relationship with such contractor. See, Amato, Opinion 89- 002. You would not have a conflict as to a contractor who worked for the Authority because you would not have a business relationship with such contractor. The above conclusion as to a conflict of interest pursuant to Section 1103(a) of the Ethics Act follows the decision of the Commonwealth Court in Snyder v. State Ethics Commission, 686 A.2d 283 (Pa. Commw. 1996), alloc.den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In the cited case,6mmonwealth Court affirmed a decision of the State Ethics Commission, finding a violation of the Ethics Act by a township supervisor who participated in votes concerning a development project while engaging in an undisclosed business relationship with the developer. Commonwealth Court stated: [I]t is irrelevant whether Snyder improperly used his influence as a Supervisor to gain the Colonial Commons and Blue Meadow contracts; Snyder may have been able to obtain the jobs even if he were not a Supervisor, but as a Supervisor, he should not have considered and voted on issues involving his personal business dealings. Id. at 849 (Emphasis added). 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: As Building Inspector /Zoning Officer for North Shenango Township, you are a public employee as that term is defined in the Ethics Act. Further, as a member of the North and South Shenango Joint Municipal Authority, you are a public official as that term is defined in the Ethics Act. Hence, you are subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. You would have a conflict as to inspecting projects or acting on applications involving contractors with whom you have an existing or ongoing business relationship. As to contractors with whom you have a past business relationship, no conflict of interest would exist. You would not have a conflict as to a contractor who worked on your husband's house in the past, assuming that the work is now complete and there is no reasonable expectation of developing a further business relationship with such contractor. Finally, you would not have a conflict as to a contractor who worked for the Authority because you would not have a business relationship with such contractor. 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. Staab, 00- 541 -CL June 19, 2001 Page 3 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