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HomeMy WebLinkAbout96-603 BiehlerM. Susan Ruffner Chief Counsel PATransit Port Authority of Allegheny County 2235 Beaver Avenue Pittsburgh, PA 15233 -1080 Dear Ms. Ruffner: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 31, 1996 96 -603 Re: Conflict; Public Official /Employee; Port Authority of Allegheny County; Director; Planning, Engineering and Construction Division; Interim Executive Director; Bids; Employment; Prospective Private Employment; Engineering Firm; Firm that may contract with Government Body. This responds to your letter of September 25, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon an individual who presently serves as the Director of the Planning, Engineering and Construction Division of the Port Authority of Allegheny County, and who will soon be serving as the Authority's Interim Executive Director, with regard to his prospective employment by a firm that may bid for future contracts with the Port Authority. Facts: As the Chief Counsel for the Port Authority of Allegheny County ( "Port Authority "), you request an advisory from the State Ethics Commission on behalf of Allen D. Biehler ("Biehler"). Biehler is the Director of the Port Authority's Planning, Engineering and Construction Division. In that capacity, Biehler has occasion to review specifications for Requests for Proposals and competitive bids. Upon approval by an independent appointed Board of Directors, Biehler may also be designated to negotiate a contract and perform certain contract administration duties. You specifically seek guidance under the Ethics Law as to the following two scenarios. (1) Biehler has been contacted by a national search firm and has indicated his willingness to explore other employment. The specific facts are set forth in a letter dated September 18, 1996, from Biehler to William W. Millar, Executive Director of Ruffner /Biehler, 96 -603 October 31, 1996 Page 2 the Port Authority, which letter you have submitted and is incorporated herein by reference. There is a potential opportunity for employment with a particular engineering firm which is currently not under contract with the Port Authority but which may be proposing on architectural and engineering services on future projects. Biehler proposes that in the event he is contacted by any party that does business with Port Authority he will immediately notify the Executive Director, his direct supervisor, regarding his candidacy for employment, the name of the company recruiting him, any contracts in place with Port Authority or any proposals or offers received but not yet acted upon in which the company is a candidate. He. will suspend any and all duties with respect to those contracts or proposals until such time that he is no longer a candidate for employment. The Executive Director of the Authority will appoint another Division Director or Manager to perform Biehler's duties for that period of time in which he is a candidate for employment with respect to any actions affecting the outside company. You state your view that the proposed course of action for this first scenario should discharge any conflict of interest or appearance of impropriety. (2) The second scenario involves Biehler's appointment as the interim Executive Director of Port Authority, beginning November 1, 1996 due to the resignation of Millar, the current Executive Director. The Board of Directors has approved the appointment of Biehler as interim Executive Director pending the appointment of a permanent successor. Biehler has recused himself from consideration as the permanent successor. During the time that Biehler will be serving as Acting Executive Director, he may also be a candidate for employment with outside companies. He proposes the same procedure as outlined above with the exception that he proposes to disclose any potential conflicts to the Chairman of the Port Authority's Board. The Chairman would then designate another Division Director or Manager to perform any duties on behalf of the Authority where Biehler might have a potential conflict of interest. In both scenarios, documentation would be made to both the Office of Chief Counsel and the Manager of Port Authority's Internal Audit Department, which is responsible for Port Authority's standard of conduct for employees. Finally, you state that you have advised Biehler that if he leaves public employment, certain restrictions will apply with respect to his representation before Port Authority for a period of up to one year, and that it is his duty to inquire of the Ethics Commission regarding those matters in the event he leaves public employment. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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 P.S. H407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Ruffner /Biehler, 96 -603 October 31, 1996 Page 3 It is also initially noted that your inquiry is limited to the applicability of Section 3(a), and you have deferred to Mr. Biehler for the submission of any inquiry as to Section 3(g) which applies to restrict former public officials /public employees. Consequently, this Advice shall not address Section 3(g). As the present Director of the Planning, Engineering and Construction Division of the Port Authority of Allegheny County, and as the Port Authority's future Interim Executive Director, Biehler would be considered a public employee as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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 3(j) of the Ethics Law provides as follows: Ruffner /Biehler, 96 -603 October 31, 1996 Page 4 Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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 Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. Sag, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. Pursuant to Section 3(a), Mr. Biehler could not use the authority of his public position(s) or any confidential information to which he has access by being in such position(s) to advance his prospects for a future employment opportunity. Such would constitute a conflict of interest for Biehler. In each instance of a conflict of interest, the public official /public employee is required to abstain fully from participation and to satisfy the disclosure requirements of Section 3(j) set forth above. Biehler's proposals for abstention and disclosure as to Ruffner /Biehler, 96 -603 October 31, 1996 Page 5 each scenario above would satisfy the requirements of Sections 3(a) and 3(j) except that in each instance of a conflict, disclosure should also be made at a public meeting of the Authority, both orally and in a memorandum filed with the minutes. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Municipality Authorities Act of 1945. Conclusion: As the present Director of the Planning, Engineering and Construction Division of the Port Authority of Allegheny County, and as the Port Authority's future Interim Executive Director, Allen D. Biehler would be considered a "public employee" subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, Biehler may not use the authority of his public position(s) or any confidential information to which he has access by being in such public position(s) for a prohibited private pecuniary benefit, which would include the advancement of his prospects for future employment. In each instance of a conflict of interest, Biehler would be required to abstain from participation and to fully satisfy the requirements of Section 3(j) set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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. } cerely, II Vincent J. Uopko Chief Counsel