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HomeMy WebLinkAbout02-590 ReitzJeffrey A. Ernico, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110 -0950 Re: Conflict; Public Official /Employee; Township Engineer; Engineering Firm; Private Pecuniary Benefit; Review By Township Engineer Of Land Development and Subdivision Plans Submitted By Employee. Dear Mr. Ernico: ADVICE OF COUNSEL August 20, 2002 02 -590 This responds to your letters dated July 11, 2002, and July 16, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a township engineer which is an engineering firm with regard to reviewing plans and advising the township as to plans submitted by an employee of the engineering firm for his personal clientele prior to or during his employment with the engineering firm. Facts: As Solicitor for the Board of Supervisors of Middle Paxton Township ownship"), you request an advisory from the State Ethics Commission regarding the prospective conduct of Light - Heigel & Associates, Inc. Light- Heigel "), the Township Engineer, in relation to one of its employees, Jeff Reitz ("Reitz"). You have submitted facts which may be fairly summarized as follows. Light - Heigel is an engineering firm. As the Township Engineer, Light - Heigel's duties include: reviewing plans submitted to the Township for review and approval, such as land development plans and subdivision plans; advising the Township as to whether submitted plans comply with the Township's ordinances and other relevant statutes and regulations; and issuing advisory recommendations to both the Township Planning Commission and the Township Board of Supervisors. You have submitted a copy of Section 66202 of the Second Class Township Code, 53 P.S. § 66202, which Section sets forth duties of township engineers. Ernico, 02 -590 August 20, 2002 Page 2 You state that prior to becoming employed by Light- Heigel, Reitz, an engineer, filed land development and /or subdivision plans with the Township for review and approval. Additionally, you state that Reitz may file land development and /or subdivision plans with the Township in the future for his personal clientele. Based upon the foregoing facts, you ask whether Light - Heigel may: (1) review plans as to Reitz's private clientele submitted to the Township by Reitz prior to or during Reitz's employment with Light - Heigel; and (2) advise the Township with respect to such plans' compliance with the Township ordinances and other relevant statutes and regulations. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Township Engineer, Light- Heigel is a public official as that term is defined in the Ethics Act, and hence Light - Heigel is subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) 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 Ernico, 02 -590 August 20, 2002 Page 3 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). The following terms that pertain 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. In considering the above provisions of the Ethics Act, it is generally noted that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of the public position - or confidential information obtained by being in that position - for the advancement of the public official's /public employee's own private pecuniary benefit, that of an immediate family member, or that of a business with which the public official /public employee is associated. However, in order for a conflict of interest to exist under the Ethics Act, each of the above statutorily- prescribed elements must exist. The mere potential appearance of impropriety will not suffice to establish a conflict of interest under the most recent versions of the Ethics Act (Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq.; contra, Act 170 of 1978, Section 3(d)). 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 Ernico, 02 -590 August 20, 2002 Page 4 involving the public official /public employee, an immediate family member, a business with which the public official /public employee is associated in a private capacity (Gorman, Order No. 1041), or business client(s) (see, Miller, Opinion No. 89 -024; al Becker, Opinion 92 -010). A reasonable arTd expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. 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() set forth above. The abstention requirement would extend to any use of authority of of including, but not limited to, voting, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Turning to your specific questions, you ask whether Light - Heigel may: (1) review plans as to Reitz's private clientele submitted to the Township by Reitz prior to or during Reitz's employment with Light - Heigel; and (2) advise the Township with respect to such plans' compliance with the Township ordinances and other relevant statutes and regulations. As to both of these questions, you are advised that Light - Heigel would not be prohibited from performing such duties as Township Engineer as long as it would do so within the parameters of the Ethics Act. However, if the performance by Light - Heigel of duties as Township Engineer as to such plans submitted to the Township by Reitz — at any time —would financially impact Light - Heigel or its client(s), then Light- Heigel would have a conflict of interest under Section 1103(a) of the Ethics Act. Miller, supra; Kannebecker, supra. In each instance of a conflict of interest, Light-Heigel would be required to abstain fully from performing its duties as Township Engineer and would also be required to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. This Advice is limited to addressing the applicability of Sections 1103(a) and 11030) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As Township Engineer for Middle Paxton Township ("Township"), Light - Heigel & Associates, Inc. ( "Light- Heigel" 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. Light- Heigel may: (1) review plans as to the private clientele of Jeff Reitz ( "Reif submitted to the Township by Reitz prior to or during Reitz's employment with Light - Heigel; and (2) advise the Township with respect to such plans' compliance with the Township ordinances and other relevant statutes and regulations, as long as Light - Heigel performs such duties within the parameters of the Ethics Act. However, if the performance by Light- Heigel of duties as Township Engineer as to such plans submitted to the Township by Reitz —at any time —would financially impact Light - Heigel or its client(s), then Light - Heigel would have a conflict of interest under Section 1103(a) of the Ethics Act. In each instance of a conflict of interest, Light - Heigel would be required to abstain fully from performing its duties as Township Engineer and would also be required to satisfy the disclosure requirements of Section 11030) of the Ethics Act as set forth above. Ernico, 02 -590 August 20, 2002 Page 5 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