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HomeMy WebLinkAbout92-646Dear Mr James: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470. TELEPHONE (717) 783 -1610 ADVICE OF coUNgEL 5 December,-3,,• x.992 Thomas Arthur James, Jr. 92 -646 James & Mihalik - 29 East Main Street Bloomsburg, PA 17815 -1898 Re:, Public.: Official /Employee, Columbia County Conservation District, Private , or Business, Engineer. This responds to your letter of October 9, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions._ Mr. Barry Travelpiece, as an employee of the Columbia ,County Conservation District, with regard to performing private consulting work as a licensed professional engineer. Facts: As the Solicitor for Columbia County, Pennsylvania, you 'request an advisory on behalf of Mr. Barry Travelpiece, an employee of the Columbia County Conservation District. Mr. Travelpiece recently received his professional engineering license and wishes to perform consulting work. You have submitted a copy of a letter dated August 17, 1992, from Mr. Travelpiece to Richard Fetterman, Chairman of the Columbia County Conservation District, in which Mr. Travelpiece asked for a determination as .to any conflicts which could arise from his proposed consulting Work after hours and on weekends. The various situgtions.ppsed by Mr. Travelpiece are as follows: 1. Mr. Travelpiece is asked to do consulting words on ; a project in another county for a landowner or oonsu1taaln,.m10 has not done work in Columbia County. _ J T 2, Mr. Travelpiece is asked to do consulting wo on a project in another county for a landowner or consultant who has not done work in Columbia County but who later brings work from Thomas Arthur James, Jr. December 3, 199 Page 2 Columbia County to him to review. 3. Mr. Travelpiece does consulting work for a project in another county at the request of a surveyor or developer who routinely does work in Columbia County. 4. Mr. Travelpiece is asked to comment on stormwater plans for a project in Columbia. County which he has aady reviewed on District time for erosion and sediment control. 5. Mr. Travelpiece is asked to do consulting work for the stormwater portion of a project in Columbia Co.nty which he would probably review as an E &S plan. 6. Mr. Travelpiece is asked by a consultant tO do deg .gn work in another county at the same time that he is reviewing one of the consultant's plans for the District. 7. Mr. Travelpiece is asked to design or approve} a non E &S related design for a project in Columbia County. Such requests could include the approval of a concrete mixing design, the design of a retaining wall, or design of a sanitary system. 8. Mr. Travelpiece is asked to design an E &S plan fir a site in Columbia County which will probably be reviewed by the Columbia County Conservation District. You have submitted a copy of the aforesaid letter ate Well as a copy of a two -page document styled Mr. Travelpiece's "job description" as an employee of the Columbia County Conservation biStrict, which documents are incorporated herein by reference. The "job description" appears to have been written by Mr. Travelpiece and does not give his job title, but is characterized by Mr. Travelpiece as a list of those of his daily duties which he feels could create a possible conflict of interest with outside activities /employment. The list is as follows: E &S 1. Reviewing erosion and sediment control plans prepared and submitted by others to determine if they meet the regi irettei f s of 25 Pa. Code ff102.1 kt, seq., the erosion contr*I regulations of the Department of Environmental Resource*. Such reviews include reviewing the sequencing of operations, proposed controls, engineering calculations, and design assumptions used for the plans. Often these reviews include comments on related stormwater concerns and /or 061fflbent"s an the improper application of hydrology and hydraulics formally this is accomplished by recommending that the township Thomas Arthur James, Jr. December 3, 1992 Page 3 engineer review specific areas of concern and determine the appropriateness of the calculations. 2. According to policies set up by the board, conducting inspections of earthmoving activities to assure that accelerated pollution to the waters of the Commonwealth is being controlled. These inspectionsirequire analysis of the control measures installed, review of the proposed measures recommended in the plans, and; where necessary, requiring of revised plans to meet the requirements of the regulations. 3. Responsibility for conducting training sessions for consultants and the general public to advise them of the requirements of the regulations and providing training on the latest techniques and procedures available to obtain the necessary controls. 4. Responsibility for obtaining "voluntary" compliance with the above regulations when possible, but when necessary, assisting the state in documenting the problems on the site and assisting the state in taking whatever legal action is necessary to gain compliance with the regulations. 5. Responsibility for the submission of various quarterly reports and other reports as required for the program. 6. As erosion specialist for the District, making recommendations to local municipalities or consultants as to the best way to resolve an erosion or stormwater problem. This type of advice is limited to pointing out general philosophies and general techniques that others might use to prepare detailed plans for the project. Chesapeake Bay 7. Responsibility for the solicitation of and initial screening of applicants for the state funded financial assistance program. This includes explaining the program to potential applicants and helping them complete the application. Conducting an on -site evaluation of the farm to determine the severity of the problems on the farm. This information is used by the Bay Subcdtmittee of the District to set priority for funding in the program. 8. After the applications have been prioritized, working with the highest ranked farmers to prepare a nutrient management plan which identifies all known pollution problems on the farm and recommends, oways tc�,::correct, - problems. From this information, an agreement is entered into between the landowner and the Conservation District in which the landowner Thomas Arthur Jams, Jr. December 3, 1992 Page 4 agrees to correct the identified problems by specific time frames and the District agrees to provide technical and financial aid as specified in the agreement. 9. Responsibility for assuring that the practices are designed and installed on a timely basis. This means preparing the designs, or in some cases, having the SCS engineers prepare the plans and coordinating the contracting and installation of the project as well as completing the paperwork required to process the cost -Share patent for the landowner: 10. Working with non-Bay participants by preparing a nutrient management plan as requested and /or reviewing plan* prepared by others. If the nutrient fttaiiagement law, as recommended by the Mouse of Representatives were to pass, there would be additional responsibility for reviewing the plans as required by the legislation. 11. Responsibility for the submission of quarterly reports to the state tracking the progress of the program. On behalf of Mr. Travelpiece, you request a written advisory as to whether Mr. Travelpiece, as an employee of the Columbia County Conservation District, may perform consulting work as a professional engineer as outlined above. Discussions Based upon a review of Mr. Travelpiece's partial description of his job duties as an employee of the Columbia County Conservation District, Mr. Travelpiece is 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 foiibwinq terms are defined in the Ethics Law as follows: Sec Definitions. "Conflict or conflict of interest." i?se by a public official or public employee Of the authority of his office or einploymeiit or any confi dential information received through hid holding public Office or entp loyittent for the private pecuniary benefit of himself, a member Thomas Arthur James, Jr. December 3, 1992 Page 5 e D of his immediate family or a business with which he or a memberof 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. "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. 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 wi,1,.1 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: 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 puff 4c official or puI11c employee, who in t4e d,iseharge of his official duties, would be; required to vote on a matter that %old resu,l.t in .a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and Thomas Arthur James, Jr. December 3, 1992 Page 6 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 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. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict' with his public duties,.' Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. Thomas Arthur James, Jr. December 3, 1992 Page 7 In addition, the public official/employee could not during government working hours,' solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. _ In the event that the private employer /business or a private client has a matter pending before Mr. Travelpiece's governmental body or if Mr. Travelpiece as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that Mr. Travelpiece be removed from that process, and that he fully comply with the disclosure requirements of Section 3(j) as set forth above. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to.,the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well,as filing a written memorandum as per the requirements of Section 3;j j ) of the Ethics Law. Brooks, Opinion 89 -023. In Ferrero, Order No. 720, the Commission held that a township engineer violated of Section 3(a) of former Act 170 of 1978 in reviewing or approving plans for persons who employed him or with whom he had a business relationship. In denying a request for reconsideration, the Commission characterized Ferrero's representation of both sides -- the municipality and client -- as "the most culpable aspect" of his actions. Ferrero, Order No. 720 - R. The specific scenarios posed by Mr. Travelpiece shall now be addressed, in light of the above restrictions. The first scenario would not present a conflict of interest under Section 3(a), because that scenario is solely a private business transaction without any link to the public employment. Under the second scenario, Mr., Travelpiece would have a conflict of int as : a _public_ employee in reviewing work submitted by the consultant for whom Mr..Travelpiece performed Thomas Arthur James, Jr. December 3, 1992 Page 8 private work in another county. The consultant would be Mr. Travelpiece's private client, and therefore the conflict would arise under the reasoning of the Miller Opinion, supra, as well as Ferrero, supra. Under the third scenario, Section 3(a) would not preclude the performance of the private consulting-work. However, once the surveyor or developer would become a private business client of Mr. Travelpiece, Mr. Travelpiece would thereafter have a conflict of interest in his public employment capacity as to matters submitted by the surveyor or developer. Under the fourth scenario, it would appear that a conflict would arise for Mr. Travelpiece were he to perform private consulting work on stormwater plans for a project in Columbia County which he had already reviewed on district time for erosion and sediment control. This conclusion is based upon the submitted facts which would indicate that Mr. Travelpiece would be using the authority of his public position and possibly confidential information for a private pecuniary benefit in that he would be using information which he acquired as a public employee on public time for a private pecuniary benefit in his private consulting work. Under the fifth scenario, Section 3(a) of the Ethics Law would not preclude Mr. Travelpiece from performing private consulting work in Columbia County, but should the project come before him in his capacity as a public employee, he would have a' conflict of interest. Under the sixth scenario, a conflict of interest would arise were Mr. Travelpiece to review, in his public capacity, the plans of a consultant for which he was doing design work in another county in his private capacity. Again, this conclusion is based upon the Commission's decision in Miller, supra. Under the seventh scenario, Section 3(a) of the Ethics Law would not preclude Mr. Travelpiece from performing private consulting work in Columbia County. However, should the project come before him in his public capacity, a conflict of interest would arise. Under the eighth scenario, Section 3(a) of the Ethics Law would not preclude Mr. Travelpiece from performing private consulting work in Columbia County. However, should the project come before him in his public capacity, a conflict of interest would arise. This Advice is conditioned upon the assumption that there would no be "understandings" which would transgress Sections 3(b) Thomas Arthur James, Jr. December 3, 1992 Page 9 and /or 3(c) of the Ethics Law. 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 4n interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code. Conclusion: As an employee of the Columbia County Conservation District, Mr. Travelpiece is a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit Mr. Travelpiece from performing private consulting work as a licensed professional engineer, subject to the restrictions, conditions, and limitations 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this ,Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. cerely, E)'cl( Vincent . Dopko Chief Counsel.