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HomeMy WebLinkAbout21-558 D'Alessandro PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 12, 2021 To the Requester: Mr. Samuel 21-558 Dear Mr. : This responds to your correspondence dated October 19, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., prohibit you from serving in the position of Zoning Officer for the Borough of East Stroudsburg, Monroe County, Pennsylvania, when: (1) you are a former employee of the engineering firm which serves as the Borough Engineer; and (2) the engineering firm rents space in a building that you own in the Borough? Brief Answer: NO. The Ethics Act would not prohibit you from serving in the position of Borough Zoning Officer; however, in such position, you would generally have a conflict of interest under Section 1103(a) of the Ethics Act in any matter that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: You are a licensed professional engineer in Pennsylvania. You previously owned and operated a civil engineering firm, R.K.R. Hess Associates Inc. (R.K.R. Hess), which was located in the Borough and served as the Borough Engineer. In 2012, you sold the tangible assets and , 21-558 November 12, 2021 Page 2 trade name of R.K.R. Hess to UTRS Inc. (UTRS), which is located in Cherry Hill, New Jersey. You were employed with UTRS until September 2017. You own a building in the Borough. UTRS, which currently serves as the Borough Engineer, and other tenants rent space in your building. You recently used UTRS to perform survey work for you in Paradise Township, Monroe County, Pennsylvania. You ask whether the Ethics Act would permit you to serve as the Borough Zoning Officer. You express your understanding that if you would become the Borough Zoning Officer, any code issues involving your building would have to be handled by another Borough official, and you would not be able to be involved in any Borough code issue pertaining to UTRS. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act 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 , 21-558 November 12, 2021 Page 3 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. Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. 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. 65 Pa.C.S. § 1102. (i.e. 65 Pa.C.S. § 1102, a public official is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary benefit of the public official 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 of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act would not prohibit you from serving as the Borough Zoning Officer. If you would become the Borough Zoning Officer, you would in that capacity be a public official/public employee subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as the Borough Zoning Officer in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you would be required to abstain from participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. , 21-558 November 12, 2021 Page 4 Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Respectfully, Brian D. Jacisin Chief Counsel