HomeMy WebLinkAbout02-603 RattiganDavid H. Rattigan, Esquire
Williamson, Friedberg & Jones, LLC
Ten Westwood Road
P.O. Box 1190
Pottsville, PA 17901
ADVICE OF COUNSEL
October 8, 2002
02 -603
Re: Simultaneous Service, Authority Member and Chief Inspector for the Authority.
Dear Mr. Rattigan:
This responds to your letter of September 11, 2002, 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.
01 et se ., imposes any prohibition or restrictions upon an authority board member from
simultaneous y serving or being employed as a chief inspector for the authority.
Facts: As Solicitor for the Branch -Cass Regional Sewer Authority of Schuylkill County,
Pennsylvania ( "Authority "), you seek an advisory on behalf of William Jones ( "Jones "),
Chairman of the Authority. You have submitted facts, which may be fairly summarized as
follows.
The Authority is a municipal authority which was created by actions of Branch and
Cass Townships. In October 2002, the Authority will begin a construction project to construct
a sewage collection system throughout Branch and Cass Townships, and a sewage treatment
plant in Branch Township. The Authority will be entering into nine separate construction
contracts with a total construction cost of in excess of $16,000,000.
The Authority will employ between five and fifteen inspectors during phases of the
construction project to inspect the work being done by the contractors' crews and to verify the
quality and quantity of work being done by each crew as construction progresses. Candidates
for the regular inspector positions have been interviewed and will begin to be hired
approximately October 1st
The Authority is considering hiring Jones as Chief Inspector for the project on an
hourly basis. You state that the job duties of Chief Inspector will include, among others, the
following:
1. Meeting with inspectors each morning to review status and schedule;
Rattigan- Jones, 02 -603
October 8, 2002
Page 2
2. Assigning each inspector to a crew or crews for the day or week;
3. Keeping time records for inspectors;
4. Transferring inspectors to different locations as needed throughout the day;
5. Making sure inspectors are reporting and turning in quantity reports on a timely basis
given that contractors are paid based upon unit price quantities —e.g. feet of pipe
installed, number of manholes installed, or yards of concrete poured;
6. Dismissing inspectors when weather or other conditions suspends work on a given
day;
7. Coordinating and meeting with Resident Project Engineers who are on -site employees
of the design engineers;
8. Meeting with project resident engineers and contractor representatives; and
9. Participating with engineers in staking locations of sewer lines.
You state that the Board is considering hiring Jones as Chief Inspector because of his
extensive work experience in the sewer construction industry and his personal familiarity with
the design and locations of the sewage collection system. You further state Jones' 40 years
of experience in the construction industry from 1957 to 1997 included installing sewer lines,
manholes, sewer treatment plants, and pump stations, first as a laborer, then as a foreman,
and finally as a project manager after 1967. As a project manager, Jones supervised projects
from start to finish for construction companies and oversaw the work of up to 70 personnel at
one time. You note that Jones' experience contributed to his appointment to the Authority in
1996.
For the last several years and on a daily basis for the past year, Jones as a Board
Member and the engineers have determined the locations of the sewer lines. Jones has also
worked with the Authority's engineer and solicitor to obtain easements from property owners.
You state that although Jones is currently retired, he has expressed a willingness to accept the
position of Chief Inspector if offered by the Board during the construction period which is
anticipated to last approximately 18 months.
The Authority has determined to pay the regular inspectors at an hourly rate of $15 per
hour without benefits, plus reimbursement for on the job mileage. The Authority proposes to
pay the Chief Inspector $20 per hour without benefits, plus reimbursement for on the job
mileage. Because the Authority's engineers have quoted a rate of $50 per hour to provide the
inspectors employed by the engineering firm, the Authority has determined to hire its own
inspectors under the supervision of the Chief Inspector and the resident project engineers.
You state that Jones would abstain from participating in the vote on his employment as
Chief Inspector for the Authority.
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.
Rattigan- Jones, 02 -603
October 8, 2002
Page 3
As a Member of the Branch -Cass Regional Sewer Authority ( "Authority" ), William
Jones ( "Jones ") is a public official subject to the provisions of the Ethics Act. 65 Pa.C.S. §
1102; 51 Pa. Code § 11.1.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 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).
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.
Rattigan- Jones, 02 -603
October 8, 2002
Page 4
"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.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to declare
by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be
any statutorily - declared incompatibility precluding simultaneous service in the positions in
question.
Turning to the question of conflict of interest, 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, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated.
Where simultaneous service would place the public official /public employee in a
continual state of conflict, such as where in one position he would be accounting to himself in
another position on a continual basis, there would be an inherent conflict (See, Johnson,
Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as
a practical matter, for the public official /public employee to function in the conflicting positions
without running afoul of Section 1103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more
than one position, but in each instance of a conflict of interest, the individual would be required
to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. As
you have correctly noted, Jones would have a conflict as to his own appointment and any
other financial matters relating to his employment (for example, increases in his hourly rate),
could not participate, and must observe the disclosure requirements of Section 1103(j) of the
Ethics Act.
In this case, based upon the facts which have been submitted, there does not appear to
be an inherent conflict that would preclude simultaneous service as a Board Member of the
Branch -Cass Regional Sewer Authority and Chief Inspector for the Authority. Consequently,
such simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j).
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Board Member of the Branch -Cass Regional Sewer Authority
Authority "), William Jones ("Jones") 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. Jones may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of
Board Member of the Authority and Chief Inspector for the Authority, subject to the
restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed
course of conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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, provided the requestor has disclosed truthfully all the material facts and
committed the acts complained of in reliance on the Advice given.
Rattigan- Jones, 02 -603
October 8, 2002
Page 5
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