HomeMy WebLinkAbout22-534 SchreinerPHONE: 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
September 12, 2022
To the Requester:
Francis H. Schreiner
Dear Francis H. Schreiner:
22-534
This responds to your letter dated August 13, 2022, by which you requested an advisory
from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the
general issue presented below:
Issue:
Would the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et
seq., prohibit or restrict an individual employed as the Assistant Fire Chief — Field Services
and Operations for the Regional Fire Protection Program of the Centre Region Council of
Governments from accepting part-time employment as an Account Manager for Glick Fire
Equipment Co. Inc., which repairs certain fire apparatus for the Regional Fire Protection
Program?
BriefAnswer: NO. Section 1103(a) of the Ethics Act (pertaining to public officials/public
employees and conflict of interest) would not prohibit or restrict the individual, in his
private capacity, from accepting part-time employment with Glick Fire Equipment Co. Inc.
as an Account Manager. However, if the individual would accept such employment, Glick
Fire Equipment Co. Inc. would be considered a business with which the individual is
associated in his capacity as an employee, and pursuant to Section 1103(a) of the Ethics
Act, the individual generally would have a conflict of interest in his public capacity as the
Assistant Fire Chief — Field Services and Operations for the Regional Fire Protection
Program in matters that would financially impact himself or Glick Fire Equipment Co. Inc.
Facts:
Schreiner, 22-534
September 12, 2022
Page 2
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
You are employed as the Assistant Fire Chief — Field Services and Operations for the
Regional Fire Protection Program ("RFPP") of the Centre Region Council of Governments (the
"COG"). You have submitted a copy of a job description for the position of Assistant Fire Chief
— Field Services and Operations, which is incorporated herein by reference.
In your public position, you are responsible for ensuring the operational readiness of the
fire protection assets, including vehicles and firefighting equipment, of the Alpha Fire Company
of RFPP. Your duties include scheduling preventative maintenance and effecting repairs of
vehicles and equipment and assuring that periodic inspections and tests of vehicles and equipment
are completed. You are also responsible for developing specifications for new and replacement
vehicles and equipment.
You state that you do not have the authority to approve purchase orders for new vehicles
and equipment or purchase orders for repairs, inspections, tests, or other services related to your
asset management duties. Purchase approval authority instead rests with your direct supervisor,
the Fire Director.
RFPP maintains a fleet of fire vehicles that includes eleven large types of apparatus such
as engines, aerial trucks, water tankers, and rescue and HazMat vehicles. The majority of this
apparatus was procured new from Pierce Manufacturing Inc. ("Pierce") through its factory -
authorized representative. Since 2008, RFPP has purchased apparatus exclusively from Pierce
through transactional purchases facilitated by the Commonwealth's COSTARS cooperative
purchasing program.
Glick Fire Equipment Co. Inc. ("Glick"), which is the factory -authorized representative for
Pierce for Pennsylvania, owns and operates a Pierce factory -authorized repair center in Mill Hall,
Pennsylvania. RFPP uses the Glick repair center to perform all Pierce -specific repairs of RFPP
apparatus. RFPP uses other repair facilities to perform repairs that are not Pierce -specific, such as
state vehicle inspections and routine truck maintenance. Your duties as the Assistant Fire Chief —
Field Services and Operations for RFPP require you to interact with Glick for Pierce -specific
service of RFPP apparatus. You provide Glick personnel with information necessary to effect
repairs, you schedule repairs, and you verify that repairs are satisfactory through functional testing.
You do not approve the cost of repairs, issue purchase orders for repairs, or approve repair invoices
for payment.
You wish to accept part-time employment with Glick as an Account Manager. You have
submitted a copy of a position description for the position of Account Manager, which provides,
in pertinent part, that the Account Manager serves as a technical sales specialist who assists
established and prospective apparatus customers with apparatus selections and post -sales support.
You state that with regard to apparatus sales to RFPP, all parties agree that you must not participate
in the RFPP apparatus purchasing process. You further state that you and Glick would expand this
Schreiner, 22-534
September 12, 2022
Page 3
restriction to include the two COG municipalities that do not participate in RFPP. In addition,
Glick would continue to service RFPP and COG municipalities through the established Account
Manager and not you.
Based upon the above submitted facts, the question that is posed by your advisory request
is whether the Ethics Act would impose prohibitions or restrictions upon you with regard to
accepting part-time employment with Glick as an Account Manager.
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 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, pertaining to conflict of interest, 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
member of his immediate family or a business with which he or a
member of his immediate family is associated.
Schreiner, 22-534
September 12, 2022
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.
"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.
Section 1103(a) of the Ethics Act, which restricts public officials/public employees in their
public capacities and not their private capacities, does not prohibit public officials/public
employees from having outside business activities or employment. However, subject to the
statutory exclusions to the 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/employment or confidential
information received by holding such a public position for the advancement of his own private
pecuniary (financial) benefit or that of a business with which he is associated. Pancoe, Opinion
89-011.
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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. --No public official or public employee or his
spouse or child or any business in which the person 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 person who has been awarded a contract with the
governmental body with which the public official or public employee
is associated, unless the contract has been awarded through an open
and public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts awarded.
Schreiner, 22-534
September 12, 2022
Page 5
In such a case, the public official or public employee shall not have
any supervisory or overall responsibility for the implementation or
administration of the contract. Any contract or subcontract made in
violation of this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the making of
the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a political
subdivision of consulting or other services or of supplies, materials,
equipment, land or other personal or real property. The term shall
not mean an agreement or arrangement between the State or political
subdivision as one parry and a public official or public employee as
the other parry, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental body
permissible where it is otherwise prohibited. Rather, where a public official/public employee, his
spouse or child, or a business with which he, his spouse or child is associated, is otherwise
appropriately contracting with the governmental body, or subcontracting with any person who has
been awarded a contract with the governmental body, in an amount of $500.00 or more, Section
1103(f) requires that an "open and public process" be observed as to the contract with the
governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public
employee may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As the Assistant Fire Chief — Field Services and Operations for RFPP of the COG, you are
a public employee subject to the provisions of the Ethics Act. This conclusion is based upon the
submitted job description, which when reviewed on an objective basis, indicates clearly that the
power exists to take or recommend official action of a non -ministerial nature with respect to one
Schreiner, 22-534
September 12, 2022
Page 6
or more of the following: contracting, procurement; administering or monitoring grants or
subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies)
where the economic impact is greater than de minimis on the interests of another person.
Section 1103(a) of the Ethics Act would not prohibit you from accepting part-time
employment with Glick as an Account Manager. However, if you would accept such employment,
Glick would be considered a business with which you are associated in your capacity as an
employee, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict
of interest in your public capacity as the Assistant Fire Chief — Field Services and Operations for
RFPP in matters that would financially impact you or Glick. You specifically would have a
conflict of interest with regard to repairs of RFPP apparatus by Glick. In each instance of a conflict
of interest, you would be required to abstain from participation.
At such times as you would be employed with Glick, the restrictions and requirements of
Section 1103(f) of the Ethics Act would have to be observed as to any contract that would be
entered into between Glick and RFPP/COG and that would be valued at $500 or more. (See,
Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), regarding the requirements
for an "open and public process.")
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,
Bridget K. Guilfoyle
Chief Counsel