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HomeMy WebLinkAbout00-541 StaabValerie Staab 1223 Park Road Espyville, PA 16424 Dear Ms. Staab: ADVICE OF COUNSEL April 20, 2001 01 -541 Re: Conflict; Public Official /Employee; Township; Building Inspector /Zoning Officer; Member; Joint Municipal Authority; Contractor; Immediate Family Member; Son; Daughter; Business With Which Associated. This responds to your letter of March 12, 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 township employee as to inspecting sewage road cuts in the township where he is the inspector /zoning officer while he is also a member of a joint municipal authority that awards contracts to contractors to perform such sewage road cuts. Facts: Since February 1998, you have served as Building Inspector /Zoning Officer of North Shenango Township ( "Township "). On January 2, 2001, you were appointed as a member of the North and South Shenango Joint Municipal Authority ( "Authority "). On May 12, 1997, the Township adopted an ordinance that requires all property owners who want to connect their properties to sewer lines to pay a road tap fee. The ordinance was amended on January 24, 2000. You have submitted a copy of the amended ordinance, Ordinance No. 2000 -151, which is incorporated herein by reference. You state that before a building permit can be issued, a property owner must first pay a sewage tap fee at the sewage office. The owner or owner's contractor must then come to your office to apply for a building permit. If the tap is to be placed anywhere in the Township road right -of -way, the owner or contractor must pay for a road cut. The cost of the permit is $75. You have submitted a copy of a permit application, which is incorporated herein by reference. Upon payment of the permit fee, you inform the Authority that the fee has been paid. The Authority then places the project up for bid. Bidders must meet the requirements of both the Authority and Township regulations before they are permitted to bid on the project. Staub, 01 -541 April 20, 2001 Page 2 After the contractors deliver the sealed bids to the Authority Office, the Board of Directors opens the bids at a public meeting and awards the contract to the lowest bidder. The contractor who has been awarded the contract then schedules a time to perform the road cut. You are on site the day the road cut is to be performed. You remain on site until the road is restored and the equipment is removed from the site. Typically, a road cut may take anywhere from one to eight hours, depending upon the depth and material necessary to finish the road. You are paid hourly to stand and watch the road restoration. You are also entitled to 20% on all road cut permits written. However, you state that you cannot choose who pays or who gets the work. As a member of the Authority Board, you receive no compensation other than mileage and expenses as approved by the Board. You state that since you have been a member, you have not voted on any bids or charged the Township for any road cuts that have been completed in the Township. Given the above facts, you pose the following questions. 1. Whether your job inspecting sewage road cuts in the Township poses a conflict of interest; 2. Whether your son or daughter may work for a local contractor. If your son or daughter may not work on jobs that you inspect, whether they may work on jobs that you do not inspect; 3. Whether you may be friends and socialize with contractors in your respective homes; 4. Whether you may receive pens, hats, shirts, letter openers, and similar items and wear such hats or shirts during working or non - working hours; 5. Whether you may hire contractors to perform work on your own house and use local contractors that you have used in the past and now inspect their work; and 6. Whether you may work part -time doing bookwork or office work for local contractors. 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. 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 that Act. Section 1103(a) of the Ethics Act provides: $1103. Restricted activities. Staub, 01 -541 April 20, 2001 Page 3 (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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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. 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 Staub, 01 -541 April 20, 2001 Page 4 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. In applying the above provisions of the Ethics Act to the instant matter, 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. Having established the above general principles, your inquiries shall now be addressed. With regard to your first question, you would have conflicts as to inspecting sewage road cuts in the Township in certain cases. The basis for the conflict would not be because of your position on the Authority Board, but because of your business relationships with some of the local contractors whom you state you have used in the past. In the cases where business relationships exist, you would have a conflict, could not participate, and must observe the disclosure requirements of Section 1103(j) of the Ethics Act. It is generally noted that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated and /or private clients. Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. Further, a reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, Staub, 01 -541 April 20, 2001 Page 5 affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In each instance of a conflict of interest, you could not participate, and must disclose the nature of your interest both orally and by filing a written memorandum to that effect with your supervisor. With regard to your second question, to the extent you are seeking advice as to your son or daughter, be advised that they are third parties, whose conduct cannot be addressed herein. However, to the extent you are asking about your own conduct, you are advised as follows. You may not perform inspections of the work performed by a contracting firm that employs an immediate family member in that such contracting firm would be a business with which a member of your immediate family is associated. You would have a conflict based upon Miller, supra and Kannebecker, supra. With regard to your third question, assuming there would be no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act, you would not be prohibited from being friends and socializing with contractors in your respective homes because you would presumably be taking such action in a private capacity and not as a public official /public employee during governmental working hours. With regard to your fourth question, if you were to accept pens, hats, shirts, letter openers, and similar items, such would constitute gift(s) under the Ethics Act. There is no per se prohibition under the Ethics Act as to the receipt of true, "no- strings- attached" gifts by a public official /employee. See, Cooper, Opinion No. 92 -009 (Citing Wolfgang, Opinion No. 89 -028). Of course, a gift or gifts valued in the aggregate at $250 or more must be disclosed on the Statement of Financial Interests, pursuant to Section 1105(b)(6) of the Ethics Act. 65 Pa.C.S. §1105(b)(6) (Note: Pursuant to Section 5(d) of the Ethics Act, 65 P.S. §405(d)/65 Pa.C.S. §1105(d), the State Ethics Commission increased the statutory reporting threshold for "gifts" from $200 to $250 effective with the forms due to be filed in 1998). Such disclosure must include the name and address of the source, the amount of the gift or gifts, and the circumstances of each gift. Gifts which do not meet the aggregate threshold of $250 need not be disclosed. As to whether you could wear items of clothing during working or non - working hours, such could be problematic under the Ethics Act during working hours depending on what emblem you would be wearing. For example, a sports logo would not run afoul of the Ethics Act; however, a logo for a local contractor would be problematic in that the potential would exist that you, as a public official /public employee during government hours, would provide a mechanism to advertise or advocate for a private contractor with whom you have a business relationship. With regard to your fifth question, you could hire contractors to perform work on your own house in that you would be taking such action in a private capacity. However, as a public official /public employee, you would have a conflict as to inspecting their work based upon Miller, supra, and Kannebecker, supra. With regard to your sixth question regarding part -time work for contractors, 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. Staub, 01 -541 April 20, 2001 Page 6 Further, 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, supra; Miller, supra. Hence, although the Ethics Act would not prohibit you from doing bookwork or office work for a local contractor, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as to matters that would come before you in either of your public positions that would result in a financial gain to you or the contractor. As noted above, in each instance of a conflict, you must abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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 sewage road cuts in the Township that would be performed by contractors with whom you have a business relationship. Further, you would have a conflict as to inspecting work that would be performed by a contractor that would employ an immediate family member because such would be a business with which an immediate family member would be associated. In each instance of a conflict of interest, you could not participate, and must disclose the nature of your interest both orally and by filing a written memorandum to that effect with your supervisor. Assuming there would be no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act, you would not be prohibited from being friends and socializing with contractors in your respective homes because you would presumably be taking such action in a private capacity and not as a public official /public employee during governmental working hours. The receipt of pens, hats, shirts, letter openers, and similar items, would constitute gift(s) under the Ethics Act. The reporting requirements as to gifts must be observed. You would run afoul of the Ethics Act if you would wear an item of clothing bearing a logo for a local contractor during working hours because you would be providing a mechanism to advertise or advocate for a private contractor with whom you have a business relationship. You could hire contractors to perform work on your own house in that such action would be done in a private capacity, but you would have a conflict as to inspecting their work because you would have a business relationship with those contractors. Although the Ethics Act would not prohibit you from doing bookwork or office work for a local contractor, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as to matters that would come before you in either of your public positions that would result in a financial gain to you or the contractor. 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 Staub, 01 -541 April 20, 2001 Page 7 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