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HomeMy WebLinkAbout02-535 MartinW. Thomas Andrews, Esquire Mansell & Andrews Suite 403 25 North Mill Street New Castle, PA 16101 -3791 Dear Mr. Andrews: ADVICE OF COUNSEL March 15, 2002 02 -535 Re: Conflict; Public Official /Employee; Borough; Council Member; Business With Which Associated; Trucking /Hauling Business; Business Relationship; Vote. This responds to your faxed letters of February 14, 2002, and February 15, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PAS. § 1101 et seq. presents any prohibition or restrictions upon a borough council member who, inTis private capacity, owns a trucking /hauling business, with regard to: (1) participating in council action to amend the borough's weight ordinances to increase the weight limit on a major road in the borough, where the council member states that his trucks have seldom used that road and he does not anticipate using it in the near future; or (2) participating in matters before council involving a local cement plant with which the council member's business has a business relationship. Facts: As Solicitor for the Borough of Bessemer ( "Borough ") in Lawrence County, Pennsylvania, you seek an advisory on behalf of Borough Council Member William T. Martin, Jr. ( "Martin "). In his private capacity, Martin is the owner and operator of Martin Trucking, Inc. Martin Trucking, Inc. hauls cement from a large cement plant located within the Borough. Although the cement plant, known as "ESSROC," is a large source of the material hauled by Martin Trucking, Inc., it is not the only source. The Borough is considering amending its weight ordinances to increase the weight limit on the major north /south highway in the Borough, known as "North Main Street." Martin has advised you that in the past, his trucks have seldom used this road, and he does not anticipate using it again, at least in the near future. You pose the following two questions: Andrews /Martin 02 -535 March 15, 2002 Page 2 1. Whether Martin would have a conflict with regard to Council action to amend the Borough's weight ordinances to increase the weight limit on North Main Street; and 2. Whether Martin would have a conflict with regard to participating in matters before Council involving ESSROC. 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 a Borough Council Member, Martin is a public official subject to the provisions of the Ethics 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, Andrews /Martin 02 -535 March 15, 2002 Page 3 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. The above statutory definition of "conflict" or "conflict of interests" includes two exceptions, hereinafter referred to as the "de minimis" exception and the "class /subclass exception." The de minimis exception precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. The class /subclass exception precludes a finding of conflict of interest if the following criteria are met: (1) the public official /public employee, his immediate family member, or business with which he or his immediate family member is associated is a member of a class consisting of the general public or a subclass consisting of an industry, occupation, or other group; and (2) the public official /public employee, his immediate family member, or business with which he or his immediate family member is associated is affected by the matter in question to the same degree as the other members of the class /subclass. 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 11030) 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 Andrews /Martin 02 -535 March 15, 2002 Page 4 permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. § 11030). In each instance of a conflict, Section 11030) 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 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 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. In the instant matter, it is clear that Martin Trucking, Inc. is a business with which Martin, as owner, is associated. It is also clear that a business relationship exists between Martin Trucking, Inc. and ESSROC, such that a substantial portion of the work of Martin Trucking, Inc. consists of hauling cement from ESSROC. Therefore, you are advised that as a Borough Council Member, Martin would generally have a conflict of interest under the Ethics Act as to matters that would financially impact Martin; Martin Trucking, Inc.; ESSROC; or other clients /customers of Martin Trucking, Inc. However, conflicts would not exist as to such matters if the "de minimis" exception or the "class /subclass exception" to the definition of "conflict" or "conflict of interest" would apply. Your two specific questions shall now be addressed. Your first question is whether Martin would have a conflict of interest with regard to Council action to amend the Borough's weight ordinances to increase the weight limit on North Main Street. The fact that Martin has advised you that in the past, his trucks have seldom used this road, and he does not anticipate using it again in the near future is not dispositive. In applying the elements of Section 1103(a) to the submitted facts, Andrews /Martin 02 -535 March 15, 2002 Page 5 the necessary conclusion is that Martin would have a conflict as to such Council action if Martin, Martin Trucking Inc., ESSROC, or other clients /customers of Martin Trucking, Inc. would be financially impacted and neither the "de minimis" exception nor the "class /subclass" exception to the definition of "conflict" or "conflict of interest" would be applicable. Your second question is whether Martin would have a conflict with regard to matters before Council involving ESSROC. As noted above, generally, Martin would have a conflict of interest as to matters that would financially impact ESSROC. See, Miller supra; Kannebecker supra. See also Snyder v. State Ethics Commission 686 x843 (Pa. Cmwlth. 1996), alloc. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). However, conflicts would not exist when the "de minimis" exception or the "class /subclass" exception would apply. In each instance of a conflict, Martin would be required to abstain fully and to satisfy 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 Borough Code. Conclusion: As a Council Member for the Borough of Bessemer ( "Borough "), William I Martin, Jr. ( "Martin ") is a public official subject to the p rovisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Martin Trucking, Inc. is a business with which Martin, as owner, is associated. As a Borough Council Member, Martin would generally have a conflict of interest under the Ethics Act as to matters that would financially impact Martin; Martin Trucking, Inc.; the cement plant known as "ESSROC" with which Martin Trucking, Inc. has a business relationship; or other clients /customers of Martin Trucking, Inc. Conflicts would not exist as to such matters if the "de minimis" exception or the 'class /subclass" exception to the definition of "conflict" or "conflict of interest" would apply. Martin would have a conflict of interest with regard to Council action to amend the Borough's weight ordinances to increase the weight limit on the Borough's "North Main Street" if Martin, Martin Trucking Inc., ESSROC, or other clients /customers of Martin Trucking, Inc. would be financially impacted and neither the "de minimis" exception nor the "class /subclass" exception to the definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict, Martin would be required to abstain and observe the disclosure requirements of Section 11030) 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 Andrews /Martin 02 -535 March 15, 2002 Page 6 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