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HomeMy WebLinkAbout04-584 SkypalaEdward A. Skypala, Esquire 224 King Street Pottstown, PA 19464 -5597 ADVICE OF COUNSEL August 17, 2004 04 -584 Re: Conflict; Public Official; Township Supervisor; Business With Which Associated; Developer; Offer of Employment; Business Relationship. Dear Mr. Skypala: This responds to your letters of July 8 and 14, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor as to accepting an offer of employment from a developer to perform electrical contracting services for one of the developer's projects where: (1) prior to the offer by the developer, the township supervisor voted to grant final approval to the developer's project; and (2) at the time of the vote, the township supervisor had no anticipation of any future business relationship with the developer. Facts: As Solicitor for Upper Providence Township ( "Township "), you have been authorized to seek an advisory on behalf of Edward Murphy ( "Murphy "), a Township Supervisor. You have submitted facts, which may be fairly summarized as follows. As the governing body of the Township, the Board of Supervisors sets policy, enacts ordinances and resolutions, adopts budgets, and levies taxes. In addition, the Board decides whether to grant approval of subdivision and land development plans that have been submitted for properties within the Township. Several months ago, Supervisor Murphy voted to grant final plan approval for a developer's project in the Township. At the time of the vote, Supervisor Murphy did not anticipate a future business relationship with the developer. Subsequent to the vote, Supervisor Murphy, who owns and operates an electrical contracting business, was approached by the developer to perform electrical contracting services for that same development. You state that Supervisor Murphy has no other current or contemplated financial interest in the developers project. Skypala /Murphy, 04 -584 August 17, 2004 Page 2 Based upon the foregoing facts, you ask whether Supervisor Murphy may accept the developer's offer of employment without running afoul of the Ethics Act. 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 which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which 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. Further, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), 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 which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. As a Township Supervisor, Murphy is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that 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. "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. Skypala /Murphy, 04 -584 August 17, 2004 Page 3 "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. 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). In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest 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 Skypala /Murphy, 04 -584 August 17, 2004 Page 4 associated. Pancoe, Opinion 89 -011. 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, Gorman, Order 1041, or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. If the private employer or business with which the public official /public employee is associated or a private client 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, supra; Kannebecker, supra. 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. In each instance of a conflict of interest, the public official/ public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. The abstention requirement would not be limited merely to voting, but 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. Based upon the submitted facts, Supervisor Murphy's electrical contracting business would be considered a business with which he is associated. Pursuant to Section 1103(a) and 1103(j) of the Ethics Act, Supervisor Murphy would have a conflict and could not participate in matters that would financially impact himself, his electrical contracting business, or business client(s). Where a conflict would exist, Supervisor Murphy would be required to disclose his interest both orally and in a written memorandum filed with the person responsible for taking the minutes at the meeting. Having established the above general principles, your specific inquiry shall now be addressed. As to the question that you have posed, assuming there would be no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act, and further assuming Supervisor Murphy would not use his public position to advance his private business dealings with the developer, he would not be prohibited from accepting the developer's offer to perform electrical contracting work for the developer's project because he would presumably be performing such work in a private capacity and not as a public official during governmental working hours. However, upon accepting the developer's offer, Supervisor Murphy would specifically have a conflict of interest under Section 1103(a) of the Ethics Act as to the developer, the developer's project(s), and any other matters that would financially impact that developer. In each instance of a conflict of interest, Supervisor Murphy would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). 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 a Member of the Board of Supervisors of Upper Providence Township ( "Township "), Edward Murphy ( "Murphy ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Supervisor Murphy's electrical contracting business would be considered a business with which he is associated. Pursuant to Section 1103(a) and 1103(j) of the Ethics Act, Supervisor Murphy would have a conflict and could not participate in matters that would Skypala /Murphy, 04 -584 August 17, 2004 Page 5 financially impact himself, his electrical contracting business, or business client(s). Assuming there would be no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act, and further assuming Supervisor Murphy would not use his public position to advance his private business dealings with the developer, he would not be prohibited from accepting the developer's offer to perform electrical contracting work for the developer's project because he would presumably be performing such work in a private capacity and not as a public official during governmental working hours. However, upon accepting the developer's offer, Supervisor Murphy would specifically have a conflict of interest under Section 1103(a) of the Ethics Act as to the developer, the developer's project(s), and any other matters that would financially impact that developer. In each instance of a conflict of interest, Supervisor Murphy would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). 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 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