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HomeMy WebLinkAbout03-556 ButlerLester L. Butler, Jr., Chairman Jefferson Township Board of Supervisors 487 Cortez Road Mt. Cobb -Lake Ariel, PA 18436 Dear Mr. Butler: ADVICE OF COUNSEL June 11, 2003 03 -556 Re: Conflict; Public Official /Public Employee; Chairman; Board of Supervisors; Business With Which Associated; Engineering Firm; Inspector; Contract Between Employer and Sewer Authority. This responds to your letter of May 7, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon the Chairman of the Jefferson Township Board of Supervisors who, in his private capacity, is employed by an engineering firm and is performing inspection work as to a contract between the engineering firm and the local sewer authority for the construction of a central sewer system. Facts: As Chairman of the Board of Supervisors of Jefferson Township T"Toship"), you request an advisory from the State Ethics Commission based upon submitted facts that may be fairly summarized as follows. In your private capacity, you are employed by an engineering firm ( "Firm "). Your employment with the Firm began on April 14, 2003. The Firm is under contract with the Jefferson Township Sewer Authority ( "Sewer Authority ") to revise the Act 537 Plan and oversee construction as to the installation of a central sewer system. All work associated with the sewer roject is contracted through the Sewer Authority and paid for by the Sewer Authority. You are working on the sewer project as an inspector. Your responsibility is to inspect the sewer lines and pump stations as they are being installed and to report any errors or discrepancies to the engineer. Butler, 03 -556 June 11, 2003 Page 2 You state that the Firm is not currently associated with the Township. However, the Firm previously worked for the Township on the Act 537 Plan. An issue has been raised as to whether your employment presents a conflict of interest given your position as a Township Supervisor. You request a written advisory as to same. 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 requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As the Chairman of the Township Board of Supervisors, you are a public official subject to the provisions of the Ethics Act. 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 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. Butler, 03 -556 June 11, 2003 Page 3 "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, 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) 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. 65 Pa.C.S. § 1103(j). Butler, 03 -556 June 11, 2003 Page 4 In each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A reasonable and legitimate expectation that a business relationship will form may also support a finding of - a conflict of interest. Amato, Opinion 89 -002; Garner, Opinion 93 -004; Snyder, Order 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order 1041. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office. In Juliante, Order 809, the Commission recognized that the use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. In each instance of a conflict of interest, the public official would also be required to satisfy the disclosure requirements of Section 1103(j) set forth above. The Firm is a business with which you, as its employee, are associated. It is not clear from your advisory request letter precisely in what context your employment with the Firm has been challenged as presenting a conflict of interest. As noted above, the propriety or impropriety of past conduct may not be addressed in the context of this Advice. Therefore, to the extent any questions have been raised as to your past conduct involving the Firm and your acceptance of employment with the Firm, such questions may not be addressed herein. Past conduct may only be addressed in the context of an investigative proceeding. Focusing upon future conduct, you are advised that in your capacity as a Member and Chairman of the Township Board of Supervisors, you would generally have a conflict of interest in matter(s) coming before the Township Board of Supervisors that would financially impact you or the Firm. Butler, 03 -556 June 11, 2003 Page 5 You would specifically have a conflict of interest with regard to participating in appointing or reappointing Members to serve on the Sewer Authority at such times as the Firm would have an existing business relationship with the Sewer Authority or would reasonably anticipate developing a business relationship with the Sewer Authority. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion 86- 007-R, and Woodrinq, Opinion 90 -001. The basis for the conflict would be that in your position as a Township Supervisor, you would exercise authority over the appointment /reappointment of Member(s) of the Sewer Authority, while the Members of the Sewer Authority would exercise influence and control over Authority decisions affecting your employer's work for the Authority. Therefore, for the reasons enunciated in Bassi and Woodrin supra, as a Township Supervisor, you would have a conflict of interest pursuant to ection 1103(a) of the Ethics Act with regard to participating in appointing or reappointing Members to serve on the Sewer Authority at such times as the Firm would have an existing business relationship with the Sewer Authority or would reasonably anticipate developing a business relationship with the Sewer Authority. The fact that conflicts of interest could arise for you as a public official would not necessitate leaving your public position. Rather, in each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) above. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As the Chairman of the Board of Supervisors of Jefferson Township (" I ownship "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The engineering firm ( "Firm') by which you are employed is a business with which you are associated. In your capacity as a Member and Chairman of the Township Board of Supervisors, you would generally have a conflict of interest in matter(s) coming before the Board of Supervisors that would financially impact you or the Firm. You would specifically have a conflict of interest with regard to appointing or reappointing members to serve on the Jefferson Township Sewer Authority ( "Sewer Authority ") at such times as the Firm would have an existing business relationship with the Sewer Authority or would reasonably anticipate developing a business relationship with the Sewer Authority. In each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103() of the Ethics Act above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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 Butler, 03 -556 June 11, 2003 Page 6 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. Sincerely, Vincent J. Dopko Chief Counsel