HomeMy WebLinkAbout89-024 MillerSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Helena G. Hughes, Chair ,
Robert W. Brown, Vice Chair
W. Thomas Andrews
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Michael J. Washo
II. Factual Basis for Determination:
DATE DECIDED: October 26, 1989
DATE MAILED: November 8. 1989
Ms. Karen S. Miller 89 - 024
729 'Robert Fulton Highway
Quarryville, PA 175
Re: Conflict, Public Employee, Zoning Officer, Township, Business
with which Associated, Contracting, Consulting Firm, Plans,
Zoning Commission.
Dear Ms. Miller:
This Opinion is issued in response to your request of September
4, 1989.
I. Issue:
Whether the Public Official and Employee Ethics Law imposes any
prohibition or restrictions upon a township zoning officer who also
works for a consulting firm when that firm performs services for the
township and when that firm also serves private clients whose plans
may be brought before the township zoning commission for approval.
You serve as the appointed zoning officer in East Drumore
Township. You are directly responsible to the East Drumore Township
Board of Supervisors and serve as a.planner for the township In August 1989 you were hired by the firm of Nazi. Blake. and
Associates, Inc. 'as a planner. This firm contracts with the township
to do Act 537 plans, traffic studies, bridge inspections, and further
advises the township on proposed zoning amendments. Private clients
also may hire this firm for survey and subdivision work, which may
eventually be reviewed by East Drumore Township or you as planner for
the township engineer. Your duties as a planner include requesting
environmental engineering studies, subdivision approval evidence,
storm water management plans, and legal descriptions to accompany
Ms. Karen S. Miller
Page 2
applications when inclusion is deemed necessary. You state that you
do not recommend any particular engineering firms to the applicants
for permits. ,
You have provided a copy of Article 7 of the East Drumore
Township Zoning Ordinance which defines your duties and
responsibilities as zoning t f 4cer yolir job descri.j, tibn for
your position with N .14 1 451.k ce acid Associa€es t; ' 7In , relevatit p tft ybur
responsibilities with 81.ae:Include: planning`munieipal and rivate1y
contracted building and subdivisi on-prdjects, coordinating 'a '
applications for DER regarding municipal waste water'h treatmetrt',,,
services and community water systems, providing initial service, ,
consultation with clients, reviewing and providing commenttor zoning -
ordinance amendment proposals, doing site inspections, rough
drafts of system components recommending improvements for petinf tting
approval, and other responsibilities as designated.
You ask whether such activities create a` conflict under the
Public Officials and Employee Ethics Law.
- r.
III. Discussion
As the appointed zoning - officer in East Drumore 'Township you are
a public - employee as that term is defined in the Public Official and
Emploe
Ethics Law. e dingly ' you are sublect 'tits ':the ` rovisions
of
and therein "are-applicable to yoU.
The Ethics Law provides as follows:
- 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:
"Conflict or conflict of interest." Use by a
public official or public employee of the
authority-of his office employment or any
confidential IrifoiMation received through' his
' - holding public office or employment " €or the
private pecuniary benefit of himself, ancember of
h s` 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
impact or which affects - to the sameciegree a class
consisting of the general public or subclass
consisting of an industry, " occupation or other
group which includes the public official or public
Ms. Karen S. Miller
Page 3
employee, a member or 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 (c) 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 on the understanding that the vote, official
action, or judgment of the public official /employee would be
influenced thereby.
Generally, the Ethics Law would not restrict a zoning officer
from also working for a private firm unless that employment was
adverse to, or inherently incompatible with the duties and
responsibilities required of the zoning officer. Smith, Opinion 89
010. Conflicting or adverse interests exist where a public
official /employee represents two competing interests simultaneously.
In the instant matter, you are employed bb „a private firm which
by definition is a business with which your are associated. In the
course of your duties as a zoning officer for Drumore Township you may
at times be required to consider the approval of permits which were
prepared by yourself or Blake Associates. In such a situation you
would obviously find yourself with interests which were in conflict.
As an employee of Blake and Associates serving private clients, it is
your duty to those clients and your private employer to ensure that
permits submitted to the township are approved. In your capacity as
zoning officer, however, your primary duty is to determine that a
permit is adequate and whether it is in the best interest of the
township to grant that permit. This duty is to the public rather than
to private clients. Furthermore, we cannot help but note that persons
who wish to have the approval of the township would probably favor
having their permit submitted by Blake and Associates, knowing that
you as a township zoning officer might then be in position to approve
said plans.
For the reasons stated above, the Ethics Law would prohibit you
from using the authority of your office to approve, reconend or play
Ns. Karen S. Miller
Page 4
any role in the approval of perms" is dr 'in relation 'to- any`• township
action involving a "client; plan or 'project in which Blakee " is- involved.
In such situations you clearly must divest yourself from any
participation in the township's actions . `This result tis necessitated
by the fact that your actions would result in th& seburing of a
private pecuniary benefit for the business with which you are
associated. ,
Additionally, you are prohibited front using confidential
-information for similar purposes.
Therefore, the Ethics Law - requires that you abstain from
reviewing or recommending any = proposals which-have' bee' submitted"= -a
business with which := you are asssociated,_ nainely, and Associates.
Your abstention should: be publicly noted in iv'written memorandum with
the reasons therefore stated therein and said memorandum must be
filed with the. township'secr-etary. With the 1provis • stated above, the
Ethics Law 'does not prohibit you from-performing the duties of a
township zoning officer and working for a private planning firm so
long as :you•. avoid any conflicts pursuant to Section 3(a) of the Ethics
Law. In addition, we note in passing that you should not use any
township resources or-facilities in order to further the interests - of
'Blake and Associates? including but not limited to: use= of`the
telephone, . staff , , :equipment, research =materials, personnel;' 'oz' any
time that you - are: - being ` paid' as a public" = employee
Additionally, Section 3(f) -of the Ethics Law would also be
applicable to the instant situation. That Section provides that:
No public official or public employee &.or his
spouse' or child or any bus in which' the
Sbn 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 pefsbn
who -has been awarded a contract with the
governmental body. with which -'the public a €ficial
ry• or public,' employee ` is- associated, unlebs 1the
contract has" beefs: awarded through - an open and
public process, including prior public °fire tice and
subsequent public - disclosureL'af`a13-propbbals
considered and contracts awarded lh _ suuch`. a
case,' the public bfficial or public emp1d be
shall =` not have -- any'= tupez*isory ok b re'a I _ ` _
responsibility €or = the ifnpiemohtation . -
administration of .: the contract. = And Um:tract or
Subcontract made- in' violation bi his subsection
shall voidable by a court of-competent ` �..
Ms. Karen S. Miller
Page 5
jurisdiction if the suit is commenced within 90
days of the making of the contract or subcontract.
As noted, you are "associated with" N.M. Blake and Associates
which has contracts with the township. As such, the open and public
process requirements of Section 3(f) as well as the prohibition of
serving in a supervisory role as noted above would apply to you.
Although you do not specifically indicate the amount of the
contractual relationship and how said relationship originated, you
should be aware of the above proscriptions.
.in '-addition, it should also be noted that the above procedural
requirement is not a permission to enter into a contractual
relationship with one's own governmental body but only a procedure to
be employed where contracting is otherwise permitted.
_ To this end you should be aware of the provisions of the Second
Class_.Townshi:p Code 53 P.S. §65802(5)(f) which this Commission does
not address herein.
Lastly, 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 have not been considered in that they do not
involve interpretation of the Ethics Law. Specifically not addressed
is the applicability of the Second Class Township Code.
IV. Conclusion:
A township zoning officer is a public employee subject to the
provisions of the Ethics Law. The private firm with which said person
is employed constitutes a business with which the employee is
associated. Section 3(a) of the Ethics Law would prohibit the zoning
officer's consideration of any proposals submitted to the township by
the private firm, including those which she did not prepare. In
addition, this public employee may not use any township facilities in
order to further the business interests of the firm. The requirements
of Section 3(f)_.of the Ethics Law must be satisfied as to any
contracts between the firm and the. township. _Lastly, the propriety of
the proposed conduct has only been addressed under the,Ethics Law.
Pursuant to Section 7(9)(i), this Opinion is a complete defense
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in any 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. i .
Ms. Karen 4. Miller
Page 6
This letter.is a public record and will be made available as
such. •
Finally, any persgn request the Commission_ e.reCenaider its
Opinion. The reconside tio request must be repeiged,at
Commission within fifteea;days of the mailing date.ef thi# Opinion.
The person request ,ng rTconaideration should =present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
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eiena G. Hughes-,
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