Loading...
HomeMy WebLinkAbout22-500 HaighPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL January 11, 2022 To the Requester: Mr. Bruce W. Haigh, P.E. Dear Mr. Haigh: 22-500 This responds to your correspondence received December 7, 2021, and your email received December 9, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issues presented below: Issues: As a Member of Council for Mount Joy Borough (Borough) and/or as a Member of a Borough Committee, would you have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), with regard to participating in stormwater-related matters involving a business named "Gary Schatz Garage LLC" (Schatz Garage) or members of the Arbor Rose Community Association, when: (1) you are the President of Whittemore and Haigh Engineering, Inc. (WHEI); and (2) you and WHEI provided professional engineering consulting services to Schatz Garage and members of the Arbor Rose Community Association on stormwater-related issues prior to your election to Borough Council in November 2021? Brief Answer: You would have a conflict of interest and would violate Section 1103(a) of the Ethics Act by participating in stormwater-related matters before Borough Council or a Borough Committee that would involve Schatz Garage or members of the Arbor Rose Community Association if: (1) you would be consciously aware of a private pecuniary benefit for yourself or WHEI, which is a business with which you are associated in your capacity as an officer (i.e., President); (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the Haigh. 22-500 January 11, 2022 Page 2 definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. i 2. Would Section 1103(a) of the Ethics Act prohibit you from interacting with Borough officials and staff on behalf of Schatz Garage and members of the Arbor Rose Community Association in your private capacity(ies) as a professional engineer and/or the President of WHEI? BriefAnswer: No. Section 1103(a) of the Ethics Act, which imposes restrictions upon you in your capacity as a public official and not in your private capacity(ies), would not prohibit you from interacting with Borough officials and staff on behalf of Schatz Garage and members of the Arbor Rose Community Association in your private capacity(ies) as a professional engineer and/or the President of WHEI. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows: You reside in Mount Joy Borough (Borough), which is located in Lancaster County, Pennsylvania. Your property is located in a community which is managed by a homeowners association, the Arbor Rose Community Association (Homeowners Association). In November 2021, you were elected as a Member of Borough Council, in which capacity you might serve on a Borough Committee such as the Administration and Finance Committee. Borough Committees make only recommendations and not final decisions. In a private capacity, you are a licensed professional engineer in Pennsylvania. You are the President of Whittemore and Haigh Engineering, Inc. (WHEI). A business named "Gary Schatz Garage LLU (Schatz Garage) owns a property in the Borough. On August 31, 2018, the Borough -owned stormwater detention basin located next to Schatz Garage's property overflowed and caused damages totaling more than $300,000 to Schatz Garage's property. Since August 31, 2018, you and WHEI have been providing professional engineering consulting services to Schatz Garage with respect to stormwater-related matters. These consulting services have included making comments during public meetings of Borough Council and the Borough Public Works Committee as well as sending emails, engineering reports, and letters to Borough Council Members, the Borough Manager, Borough staff, and various governmental entities. You and WHEI are also providing professional engineering consulting services to Schatz Garage in connection with a lawsuit (Schatz Garage Lawsuit) between Schatz Garage and the Borough pertaining to stormwater issues. The Borough's insurance carrier is handling the Schatz Garage Lawsuit on behalf of the Borough. 1 Action that has a de minimis (insignificant) economic nnpact or that 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 mmriediate family, or a business with which he or a member of his mmriediate family is associated, does not constitute a conflict of interest. Haigh. 22-500 January 11, 2022 Page 3 In addition to providing professional engineering consulting services to Schatz Garage, you and WHEI have been providing such services to members of the Homeowners Association before Borough Council with regard to stormwater-related matters. You express your view that as a Member of Borough Council and/or as a Member of a Borough Committee, Section 1103(a) of the Ethics Act would prohibit you from voting on any matter(s) involving Schatz Garage or members of the Homeowners Association for which you/WHEI would be providing professional engineering services. Based upon the above submitted facts, you pose the following questions with respect to your ability to participate, either as a public official or as the President of WHEI, in matters before the Borough that would involve WHEI's clients, such as Schatz Garage and/or members of the Homeowners Association: As a Member of Borough Council, would you be permitted to discuss/comment on issues regarding a client's concerns in public meetings or executive sessions of Borough Council; 2. As a Member of Borough Council, would you be required to excuse yourself from an executive session of Borough Council or a Borough Committee where a client's issue is going to be discussed but not voted on; As a Member of a Borough Committee, would you be permitted to discuss/comment on issues regarding a client's concerns in public meetings or executive sessions of the Borough Committee; 4. As a Member of a Borough Committee, would you be permitted to vote in a public meeting or an executive session on a recommendation to Borough Council regarding a client's concerns; As the President of WHEI, would you be permitted to make comments regarding a client's concerns during a public meeting of Borough Council or a Borough Committee, where such comments would be made from the floor and not from your seat at the Borough Council or Borough Committee table, and you would identify yourself as the President of WHEI; 6. As the President of WHEI, would you be permitted to advocate for a client through providing engineering reports, letters, memoranda, emails, and the like to Borough Council Members or Borough staff, 7. As the President of WHEI, would you be permitted to communicate verbally on behalf of a client with a Borough Council Member or Borough staff outside of sessions of Borough Council or a Borough Committee; As the President of WHEI, would you be permitted to prepare reports and correspondence to Borough Council regarding issues directly related to the Schatz Haigh. 22-500 January 11, 2022 Page 4 Garage Lawsuit or other stormwater issues not related to the Schatz Garage Lawsuit; and 9. As a Member of Borough Council, would you be permitted to participate in a settlement hearing for the Schatz Garage Lawsuit and provide professional engineering input as to any negotiations. 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. Sections 1103(a) and 11030) 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. 0) 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. Haigh. 22-500 January 11, 2022 Page 5 65 Pa.C.S. §§ 1103(a), 11030). 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 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. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the "de minimis exclusion" and the "class/subclass exclusion"), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. The use of authority of office is not limited merely to voting but extends 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. Haigh. 22-500 January 11, 2022 Page 6 Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: ... must act in such a way as to put his [office/public position] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the [public official/public employee] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of Borough Council and/or as a Member of a Borough Committee, you are a public official subject to the provisions of the Ethics Act. WHEI is a business with which you are associated in your capacity as an officer (i.e., President). Under the submitted facts, the Homeowners Association is not a business with which you are associated. (It is noted that membership in the Homeowners Association alone would not be sufficient to make the Homeowners Association a business with which you are associated.) Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Therefore, Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a public official (i.e., a Member of Borough Council and/or a Member of a Borough Committee), rather than upon you in your private capacity(ies) as a professional engineer and/or the President of WHEI. Accordingly, you are advised that Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity(ies) as a professional engineer and/or the President of WHEI, from: 1. Making comments regarding a client's concerns during a public meeting of Borough Council or a Borough Committee, where such comments would be made from the floor and not from your seat at the Borough Council or Borough Committee table, and you would identify yourself as the President of WHEI; 2. Advocating for a client through providing engineering reports, letters, memoranda, emails, and the like to Borough Council Members or Borough staff, 3. Communicating verbally on behalf of a client with a Borough Council Member or Borough staff outside of sessions of Borough Council or a Borough Committee; or Haigh. 22-500 January 11, 2022 Page 7 4. Preparing reports and correspondence to Borough Council regarding issues directly related to the Schatz Garage Lawsuit or other stormwater issues not related to the Schatz Garage Lawsuit. As a public official, pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council and/or a Borough Committee that would financially impact you or WHEL It is noted that a stormwater-related matter before Borough Council or a Borough Committee involving a client of WHEI—such as Schatz Garage and/or a member of the Homeowners Association —could present a conflict of interest for you under the Ethics Act. See, Kannebecker, Opinion 92-010; Miller, Opinion 89-024. For example, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s) or any other action(s) on a stormwater-related matter involving a WHEI client if such action(s) would result in a private pecuniary benefit to you/WHEI through continuing or increasing your/WHEI's provision of engineering consulting services to a WHEI client. Accordingly, you are advised that you would have a conflict of interest and would violate Section 1103(a) of the Ethics Act in your public capacity(ies) as a Member of Borough Council and/or a Member of a Borough Committee by: Discussing/commenting on issues regarding a WHEI client's concerns in public meetings or executive sessions of Borough Council; 2. Attending and participating in an executive session of Borough Council or a Borough Committee where a WHEI client's issue is going to be discussed but not voted on; Discussing/commenting on issues regarding a WHEI client's concerns in public meetings or executive sessions of a Borough Committee; 4. Voting in a public meeting or an executive session of a Borough Committee on a recommendation to Borough Council regarding a client's concerns; or Participating in a settlement hearing for the Schatz Garage Lawsuit and providing professional engineering input as to any negotiations, if: (a) you would be consciously aware of a private pecuniary benefit for yourself or WHEI; (b) your action(s) would constitute one or more specific steps to attain that benefit; and (c) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Haigh. 22-500 January 11, 2022 Page 8 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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, rian D. Ja Chief Coun