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HomeMy WebLinkAbout01-590 GrossPeter J. Quigley, Esquire Primrose, Lyons and Quigley Attorneys at Law 17 North Sixth Street Stroudsburg, PA 18360 Dear Mr. Quigley: ADVICE OF COUNSEL September 7, 2001 01 -590 Re: Conflict; Public Official /Employee; Chairman; Regional Police Commission; Member; Borough Council; Independent Contractor; Contract; Construction of Police Headquarters. This responds to your letters of August 1, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. §1101 et seq. presents any prohibition or restrictions upon the chairman of a regional police commission with regard to contracting with the commission to provide services as an independent contractor relative to the construction of a police headquarters. Facts: You represent the Pocono Mountain Regional Police Commission CPMRPC "). You seek an advisory from the State Ethics Commission on behalf of Roy Gross ( "Gross "), chairman of the PMRPC and chairman of the Mt. Pocono Borough Council. You have submitted a copy of the Pocono Mountain Regional Police Agreement ( "Agreement "), which Agreement is incorporated herein by reference. The PMRPC provides police services to the Pocono Mountain Regional Police District ( "PMRPD ") which includes Tobyhanna Township, Tunkhannock Township, Coolbaugh Township, and Mount Pocono Borough. The PMRPD is subject to the exclusive control and authority of the PMRPC. The PMRPC plans to construct a police headquarters at an estimated cost of $2.2 million. You state that while the engineering firm which designed the project has been contacted to provide on -site supervision of the construction, the PMRPC would also like to retain Gross, a local builder, to provide similar services on an as- needed basis. Quialev /Gross, 01 -590 September 7, 2001 Page 2 You state that the PMRPC is interested in retaining Gross for several reasons. First, Gross has been a long time PMRPC member. Second, Gross has spent most of his career in the building business. Third, Gross is in the process of retiring and therefore will have the time available to spend at the site. Fourth, it is believed that Gross has the necessary experience to inspect the construction process. Fifth, the PMRPC is concerned that the engineer may be too busy to be on -site as often as desired. Based upon the above, you ask whether the Ethics Act would permit Gross to contract with the PMRPC as an independent contractor to help oversee construction of the police headquarters. 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. § 107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Chairman of the PMRPC and as Chairman of the Mt. Pocono Borough Council, Gross is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide as follows: §1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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(a), (j). Quialev /Gross, 01 -590 September 7, 2001 Page 3 The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. 65 Pa.C.S. §1102. 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. 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. Section 1103(f) of the Ethics Act provides as follows: §1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee Quialev /Gross, 01 -590 September 7, 2001 Page 4 shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(0 requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an `open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(0 of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. The following terms that pertain to Section 1103(f) are defined in the Ethics Act are as follows: §1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political Quialev /Gross, 01 -590 September 7, 2001 Page 5 subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. The above provisions of the Ethics Act shall now be applied to your inquiry. You are advised that the PMRPD would be considered a "political subdivision" under the Ethics Act, having been organized by other political subdivisions (townships and a borough). The PMRPC would be considered a "governmental body," and specifically, a governmental body with which Gross is associated. Pursuant to Section 1103(a) of the Ethics Act, Gross would be prohibited from using the authority of his office as a member /chairman of the PMRPC, or confidential information received by being in such position(s), 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. Although Section 1103(a) of the Ethics Act would not prohibit Gross in his private capacity as a builder from providing services to the PMRPC as an independent contractor, it would restrict Gross in his public capacity as a public official relative to such matters. Thus, for example, Gross would have a conflict of interest in matters pertaining to the retaining of such services or the payment for same by the PMRPC. Additionally, Gross would have a conflict in other matters pertaining to the construction of the police headquarters where such matters would financially impact Gross. In each instance of a conflict of interest, Gross would be required to abstain fully and to fully satisfy the disclosure requirements of Section 11030) of the Ethics Act set forth above. You are advised that the abstention requirement would not be limited to voting, but would extend to any use of authority of office. The use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. See Juliante Order 809. As for Section 1103(f), if the value of the contract between Gross and the PMRPC would be $500 or more, the requirements of Section 1103(f) of the Ethics Act set forth above would have to be strictly observed. This Advice is limited to addressing the applicability of Sections 1103(a), 11030), and 1103(f) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private p ecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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 Quialev /Gross, 01 -590 September 7, 2001 Page 6 interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Intergovernmental Cooperation Act, 53 Pa.C.S. § 2301 et seq. Conclusion: As Chairman of the Pocono Mountain Regional Police Commission ( "PMRPC" ) and as Chairman of the Mt. Pocono Borough Council, Roy Gross ( "Gross ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Section 1103(a) of the Ethics Act would not prohibit Gross in his private capacity as a builder from providing services to the PMRPC as an independent contractor, but it would restrict Gross in his public capacity as a public official relative to such matters. Gross would have a conflict of interest in matters pertaining to the retaining of such services or the payment for same by the PMRPC. Additionally, Gross would have a conflict in other matters pertaining to the construction of the police headquarters where such matters would financially impact Gross. In each instance of a conflict of interest, Gross would be required to abstain fully and to fully satisfy the disclosure requirements of Section 11030) of the Ethics Act set forth above. If the value of the contract between Gross and the PMRPC would be $500 or more, the requirements of Section 1103(f) of the Ethics Act would have to be strictly observed. 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