Loading...
HomeMy WebLinkAbout02-549 ShellyThomas E. Shelly, P.L.S., S.E.O. Shelly & Witter, Inc. 122 West Market Street McConnellsburg, PA 17233 ADVICE OF COUNSEL April 5, 2002 02 -549 Re: Conflict; Public Official /Employee; Sewage Enforcement Officer; Townships; Business With Which Associated; Surveyor. Dear Mr. Shelly: This responds to your letter of March 4, 2002, 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 sewage enforcement officer with regard to performing a survey in a township in which he serves as sewage enforcement officer. Facts: You are employed as a sewage enforcement officer ( "SEO ") by several different townships. In 1992, you formed a partnership to begin a surveying firm. Prior to forming the partnership, you requested clarification from the Department of Environmental Protection ( "DEP" ) as to your limitations in serving as an SEO and a surveyor. You state that DEP advised you that if you would perform a survey in a township in which you serve as an SEO, you could in no way be involved with the soil testing, planning module approval or permit issuance of a septic system. You further state that you been able to work within DEP's stated limitations without any problems and that several survey projects have been completed by you or your partner with DEP approval. In a recent regulatory clarification issued by DEP, you state that a determination was made that you may not perform a survey in a township in which you are either a primary or alternate SEO, even if you have no involvement with the soil testing or installation permitting. You state that such is prohibited unless the survey client pays your fee to the township, which in turn pays you or your surveying business. You have submitted a copy of DEP's regulatory clarification, which is incorporated herein by reference. Shelly, 02 -549 April 5, 2002 Page 2 You feel that DEP's interpretation is incorrect. In a follow -up telephone conversation with DEP, you state that you were advised that as long as your name would not appear on the plans, you could continue as you have in the past. You do not understand how this would be acceptable, but performing the survey would not, given that the fees would ultimately end up in the same place -your corporate account. You assert that most of the townships that employ you as an SEO do not want to pay for your survey work through the township account. You believe that the municipalities should have some input in this matter. In that some areas have difficulty finding SEO's, you contend that most townships want you to continue as an SEO. You have seen situations where engineers who are employed by a township perform work in the township as long as another firm conducts the review. You argue that this is analogous to the instant situation with the exception that the position of SEO is "less than a professional position." In addition, you state that approximately six years ago, DEP regulations were revised to allow an SEO to perform design work in the township that employed him as long as the work would be listed in the township fee schedule and the fee would be paid to the township, which in turn, would pay the SEO. You seek a review by the State Ethics Commission of DEP's regulatory clarification. 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. Further, this advisory will only address your conduct under the Ethics Act. The advice will not review the ruling of the Department of Environmental Protection ( "DEP "), which is beyond the jurisdiction of the State Ethics Commission. As a Sewage Enforcement Officer ( "SEO ") for various municipalities, you are a public official /employee as that term is defined in the Ethics Act, and hence you are 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 Shelly, 02 -549 April 5, 2002 Page 3 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 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 Shelly, 02 -549 April 5, 2002 Page 4 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 your inquiry, you are advised that Section 1103(a) of the Ethics Act does not generally prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may employee 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 a business with which the public official /public employee is associated or its client(s) would have matter(s) pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter(s). Miller, Opinion No. 89 -024; see also, Kannebecker, Opinion 92 -010. 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) set forth above. As to the restrictions that apply to you under the Ethics Act, in your official capacity as an SEO, you would have a conflict as to reviewing or approving any matters in which you, your partner or your surveying business provided surveying or any other services to private clients. You would also have a conflict as to any matters that would financially impact yourself, a member of your immediate family, a business with which you are associated, such as your surveying business, or any business clients. 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. 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. Shelly, 02 -549 April 5, 2002 Page 5 Conclusion: As a Sewage Enforcement Officer ( "SEO ") for various municipalities, you are a public official /employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. In your official capacity as an SEO, you would have a conflict as to reviewing or approving any matters in which you, your partner or your surveying business provided surveying or any other services to private clients. You would also have a conflict as to any matters that would financially impact yourself, a member of your immediate family, a business with which you are associated, such as your surveying business, or any business clients. 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. 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