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HomeMy WebLinkAbout01-547 DeAngelisBryan DeAngelis 219 Parkridge Place South Park, PA 15129 ADVICE OF COUNSEL May 3, 2001 01 -547 Re: Conflict; Public Official /Employee; Acting Inspector -in- Charge; PennDOT; Immediate Family Member; Brother. Dear Mr. DeAngelis: This responds to your letter received on April 4, 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 an Acting Inspector -in- Charge for PennDOT as to working on a project for which PennDOT has contracted with a consultant engineering firm, where the firm employs his brother who will be assigned to work on the PennDOT project. Facts: You are employed by PennDOT as a Civil Engineer 11 in the Construction Unit. You have submitted copies of your unofficial job description and organizational chart, which are incorporated herein by reference. You have also submitted a copy of an unofficial job description for your brother, Barry DeAngelis, which is also incorporated herein by reference. You state that you will become the Acting Inspector -In- Charge on an upcoming PennDOT project for which PennDOT has contracted with a consultant engineering firm to provide inspection services. You further state that the consultant engineering firm employs your brother as a transportation construction inspector /supervisor. You have reason to believe that the consultant engineering firm will assign your brother to the project as a transportation construction inspector /supervisor and /or a construction documentation system operator, given that he exceeds all criteria as a transportation construction inspector /supervisor. As the Acting Inspector -In- Charge, you would have no involvement or input with regard to the selection, solicitation and provision of the consultant engineering services for project inspection. You would, however, be involved in selecting personnel for the project inspection by recommending to your superior certain individuals or candidates chosen from a list of personnel provided by the consultant engineering firm to make up the project inspection staff. You state that final approval of the inspection staff would come from the PennDOT District Assistant Construction Engineer and the PennDOT Assistant District Engineer. You note that you would have no involvement as to setting pay scales or benefits provided to the consultant engineering employees. The only involvement that you DeAngelis, 01 -547 May 3, 2001 Page 2 would have with the consultant engineering firm employees' pay would be to verify the hours worked on the project by signing timesheets for payroll purposes. facts. You ask whether you would have a conflict of interest, given the above stated 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 Acting Inspector -in- Charge 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: 65 Pa.C.S. §1102. $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. "Immediate family." A parent, spouse, child, brother or sister. DeAngelis, 01 -547 May 3, 2001 Page 3 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 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Because your brother is in one of the familial relationships delineated above, he is a member of your immediate family. Further, the consultant engineering firm that employs your brother is a business with which your brother is associated. Hence, you generally would have a conflict as to matters involving your brother and the business with which your brother is associated. You would have a conflict as to the consultant engineering firm that employs your brother and could not participate in the consultant selection process. This should not become an issue in that you have stated that you will have no involvement as to the selection of consultant engineering services. Further, you would have a conflict as to making recommendations to your superior as to the project inspection staff or verifying hours worked on the project by signing timesheets. In each instance of a conflict, you DeAngelis, 01 -547 May 3, 2001 Page 4 would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act by filing a memorandum disclosing your interest with your supervisor. 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. Conclusion: As Acting Inspector -in- Charge of 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 brother is a member of your immediate family. Further, the consultant engineering firm that employs your brother is a business with which your brother is associated. Hence, you generally would have a conflict as to matters involving your brother and the business with which your brother is associated. You would have a conflict as to the consultant engineering firm that employs your brother and could not participate in the consultant selection process. Further, you would have a conflict as to making recommendations to your superior as to the project inspection staff or verifying hours worked on the project by signing timesheets. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act by filing a memorandum disclosing your interest with your supervisor. 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