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HomeMy WebLinkAbout24-500 Logsdon 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 January 8, 2024 To the Requester: Sean W. Logsdon, Esquire 24-500 Dear Mr. Logsdon: This responds to your letter dated December 18, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a borough council member with regard to the individual’s company performing IPMC, building code, and zoning services for the borough. Brief Answer: The Ethics Act would not prohibit the individual or his company from performing IPMC, building code, and zoning services for the borough. However, because the individual’s company is a business with which the individual is associated, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a borough council member with regard to participating in matters before the borough council pertaining to his or his company’s provision of such services to the borough. Facts: Youhave been authorized by Henry Mleczynski (“Mr. Mleczynski”) to request an advisory from the Commission on his behalf. You have submitted facts that may be summarized as follows. Logsdon, 24-500 January 8, 2024 Page 2 Mr. Mleczynski is a newly elected Member of Council for Sugar Notch Borough (“Borough”), located in Luzerne County, Pennsylvania. In a private capacity, Mr. Mleczynski operates Regional Municipal Services, LLC, which provides IPMC, building code, and zoning services for various municipalities, including the Borough. These services are provided to the Borough under a contract with Regional Municipal Services, LLC, and not with Mr. Mleczynski personally. The question that is posed by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon Mr. Mleczynski with regard to him or Regional Municipal Services, LLC performing IPMC, building code, and zoning services for the Borough. 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 1103(j) 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. (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 Logsdon, 24-500 January 8, 2024 Page 3 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(a), 1103(j). 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. Section 1103(a) of the Ethics Act (pertaining to conflict of interest), 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 Logsdon, 24-500 January 8, 2024 Page 4 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. 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. In each instanceof a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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. 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: “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 party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in Logsdon, 24-500 January 8, 2024 Page 5 consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1101. 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 a Member of Borough Council, Mr. Mleczynski is a public official subject to the provisions of the Ethics Act. Mr. Mleczynski’s company, Regional Municipal Services, LLC, is a business with which Mr. Mleczynski is associated. Pursuant to Section 1103(a) of the Ethics Act, Mr. Mleczynski generally would have a conflict of interest as a Borough Council Member in matters that would financially impact him or Regional Municipal Services, LLC. Section 1103(a) of the Ethics Act would not prohibit Mr. Mleczynski or Regional Municipal Services, LLC from performing IPMC, building code, and zoning services for the Borough. However, Mr. Mleczynski would have a conflict of interest as a Borough Council Member with regard to matters pertaining to a contract between the Borough and Regional Municipal Services, LLC for the provision of suchservices to the Borough. In each instance of a conflict of interest, Mr. Mleczynski would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any extension/renewal of a contract between the Borough and Regional Municipal Services, LLCor any new contract between the Borough and Regional Municipal Services, LLC for the provision of IPMC, building code, and zoning services to the Borough. (See, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), regarding the requirements for an “open and public process.”) In pertinent part, Section 1103(f) of the Ethics Act would prohibit Mr. Mleczynski, in his public capacity as a Member of Borough Council, from having any supervisory or overall responsibility for the implementation of a contract between the Borough and Regional Municipal Services, LLC for the provision of such services to the Borough. Logsdon, 24-500 January 8, 2024 Page 6 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 receivedat 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