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HomeMy WebLinkAbout04-604 FrehulferGuy R. Frehulfer 429 White Street Weissport, PA 18235 -2706 ADVICE OF COUNSEL December 16, 2004 04 -604 Re: Conflict; Public Official; Borough Mayor; Independent Contractor; Services at Sewer Authority. Dear Mr. Frehulfer: This responds to your faxed letter received on November 12, 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 borough mayor with regard to performing services at the municipal sewer authority as an independent contractor. Facts: As the new Mayor of the Borough of Weissport ( "Borough "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. In your private capacity, you perform troubleshooting services at the Weissport Sewer Authority ( "Authority "). You provide such services as an independent contractor. The services involve a system that was installed by Interon Pump Company ( "Interon "). You submit the bill for your services to the Authority, which then submits your bill to Interon for reimbursement. Now that you are the Borough Mayor, you ask whether you may continue to perform the aforesaid services at the Authority. 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. As Borough Mayor, you are a "public official" subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities Frehulfer, 04 -604 December 16, 2004 Page 2 (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. "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 Frehulfer, 04 -604 December 16, 2004 Page 3 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 the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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 private pecuniary 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. In each instance of a conflict, Section 1103(j) requires the public official /public employee to abstain fully 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, Pavlovic, Opinion 02 -005. It is further noted that a use of the authority of office for a pecuniary benefit flowing only to a governmental body, as opposed to a "business," will not establish the requisite elements for a conflict of interest under Section 1103(a) of the Ethics Act. See, Warso, Order 974. Having established the above general principles, your specific inquiry shall now be addressed. Municipal authorities created pursuant to the Municipality Authorities Act of 1945 are not creatures, agents or representatives of the municipalities that organize them, but instead are independent agencies of the Commonwealth. Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971). Therefore, based upon the facts that you have submitted and conditioned upon the assumption that the Authority was created pursuant to the Municipality Authorities Act of 1945, your work at the Authority would not involve a contract between you and the Borough. It is unlikely that in your capacity as Borough Mayor you would be required to take official action in a matter that would impact upon your work at the Authority. Frehulfer, 04 -604 December 16, 2004 Page 4 However, if such a matter would arise, as Borough Mayor you would generally have a conflict of interest as to such matter pursuant to Section 1103(a) of the Ethics Act. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 Borough Code. Conclusion: As Mayor of the Borough of Weissport ( "Borough "), 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. Based upon the facts that you have submitted and conditioned upon the assumption that the Weissport Sewer Authority ( "Authority ") was created pursuant to the Municipality Authorities Act of 1945, your work at the Authority would not involve a contract between you and the Borough. It is unlikely that in your capacity as Borough Mayor you would be required to take official action in a matter that would impact upon your work at the Authority. However, to the extent such a matter would arise, as Borough Mayor you would generally have a conflict of interest as to such matter pursuant to Section 1103(a) of the Ethics Act. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 11030) of the Ethics Act. 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