HomeMy WebLinkAbout05-525 StuartADVICE OF COUNSEL
March 23, 2005
Brian I. Stuart, Chairman
Lackawaxen Township Board of Supervisors
P.O. Box 205
Lackawaxen, PA 18435
Dear Mr. Stuart:
05 -525
Re: Conflict; Public Official /Public Employee; Township; Apprentice Building Inspector;
Private Employment or Business; General Construction Contractor.
This responds to your letter of February 17, 2005, by which you requested advice
from the State Ethics Commission.
Issue: Whether an apprentice building inspector for a second class township is
prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., from working with, being employed by or associated with a
business /person in a private capacity in addition to public service.
Facts: As members of the Lackawaxen Township ( "Township ") Board of Supervisors
( "Board "), the appointing authority and employer of the Township's Apprentice Building
Inspector, you seek an advisory from the State Ethics Commission. You have submitted
facts, which may be fairly summarized as follows.
The Board recently appointed an Apprentice Building Inspector for the Township
to succeed the current Building Inspector, who will retire in the distant future. In an
effort to provide the best services to the Township residents through adequate staffing,
the Township is actively pursuing the Township Zoning Officer to also become certified
as a building inspector. Thus, at the present time, the Township has one certified
building inspector and two individuals who are in the process of seeking certification.
In a private capacity, the Apprentice Building Inspector is currently employed and
will remain employed as a general construction contractor within and outside the
Township. You state your understanding that once the Apprentice Building Inspector is
certified, he may not inspect or certify his own work in whole or in part, and that any
such inspections and certifications must be done by one of the Township's alternate
inspectors or an independent inspector. You state your further understanding that the
position cannot and would not create an environment that would be a detriment to other
contractors. You maintain that you have controls in place to avoid a conflict of interest
with the position of Building Inspector and the individual's construction business.
Based upon the foregoing facts, you seek guidance as to how to prevent conflicts
of interest before they occur.
Stuart, 05 -525
March 23, 2005
Page 2
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 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 requester has truthfully disclosed all of the material facts.
The Apprentice Building Inspector for the Township is a public official /public
employee as those terms are defined under the Ethics Act, and hence the Apprentice
Building Inspector 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.
"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.
Stuart, 05 -525
March 23, 2005
Page 3
65 Pa.C.S. §1102.
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 the instant matter, it is noted
that 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.
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; Rembold, Order 1303; Wilcox, Order 1306), or private
customer(s)/client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010).
In Kannebecker, supra, the State Ethics Commission determined that a township
supervisor, who in his private capacity was an attorney, would have a conflict of interest
as to matters before the township involving ongoing clients or client(s) for whom he
was on retainer, even if he would not represent such client(s) as to the matter pending
before the township. The Commission determined that as a general rule, a conflict
would not exist as to former client(s), but that under certain circumstances, a conflict
could exist as to former client(s) depending upon factors such as the number of prior
representations of the given client and the period of time over which such occurred.
Stuart, 05 -525
March 23, 2005
Page 4
The Commission has also held that a reasonable and legitimate expectation that a
business relationship will form may support a finding of a conflict of interest. Amato,
Opinion 89 -002.
In the instant matter, the construction business that employs the Apprentice
Building Inspector would be considered a business with which he is associated. The
Ethics Act would not prohibit the Apprentice Building Inspector in his private capacity
from continuing to do business with clients who would have matters before the Township.
However, pursuant to Section 1103(a) of the Ethics Act, the Apprentice Building
Inspector would generally have a conflict of interest in a public capacity in matters that
would financially impact himself, the construction business, or a private client. Thus, if a
matter would come before the Apprentice Building Inspector in his public capacity
involving a private client, he would generally be required to abstain from participating and
to satisfy the disclosure requirements of Section 1103 (j) of the Ethics Act. In this regard,
it is noted that the Township will have several individuals who will be certified building
inspectors; thus those individuals may serve as alternate building inspectors on jobs
involving the construction business that employs the Apprentice Building Inspector.
Having established the above, you are advised that as a general rule, a conflict
would not exist as to former client(s), but under certain circumstances, a conflict could
exist as to former client(s) depending upon factors such as the number of prior business
transactions involving the given client and the period of time over which such occurred.
You are further advised that the de minimis exclusion to the definition of "conflict"
or "conflict of interest" precludes a finding of conflict of interest as to an action having a de
minimis (insignificant) economic impact. See, Kolb, Order 1322; Schweinsburq, Order
900. The Commission has determined the applicability of the de minimis exclusion on a
case -by -case basis, considering all relevant circumstances. In the past, the Commission
has found amounts ranging from $2 to approximately $300 to be de minimis.
Therefore, the Apprentice Building Inspector would not have a conflict of interest
as to a client from which he would receive only a de minimis (insignificant) financial
benefit. 65 Pa.C.S. § 1102. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa.
Cmwlth. 2004). For a client involved in multiple transactions, the aggregate financial
benefit received from such transactions should be considered in order to determine
whether the de minimis exclusion would be applicable.
This Advice is limited to addressing the applicability of Section 1103(a) of the
Ethics Act. It is expressly assumed that there has been no use of authority of office for a
private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further,
you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that
no person shall offer to a public official /public employee and no public official /public
employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /public
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.
Conclusion: The Apprentice Building Inspector for Lackawaxen Township
"Township ") is a public official /public employee as those terms are defined under the
Ethics Act, and hence the Apprentice Building Inspector is subject to the provisions of
that Act. The construction business that employs the Apprentice Building Inspector
would be considered a business with which he is associated. The Ethics Act would not
prohibit the Apprentice Building Inspector in his private capacity from continuing to do
business with clients who would have matters before the Township. However, pursuant
to Section 1103(a ) of the Ethics Act, the Apprentice Building Inspector would generally
have a conflict of interest in a public capacity in matters that would financially impact
himself, the construction business, or a private client. Thus, if a matter would come before
Stuart, 05 -525
March 23, 2005
Page 5
the Apprentice Building Inspector in his public capacity involving a private client, he would
generally be required to abstain from participating and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. In this regard, it is noted that the
Township will have several individuals who will be certified building inspectors; thus those
individuals may serve as alternate building inspectors on jobs involving the construction
business that employs the Apprentice Building Inspector. As a general rule, a conflict
would not exist as to former client(s), but under certain circumstances, a conflict could
exist as to former client(s) depending upon factors such as the number of prior business
transactions involving the given client and the period of time over which such occurred.
The Apprentice Building Inspector would not have a conflict of interest as to a client
from which he would receive only a de minimis (insignificant) financial benefit. For a
client involved in multiple transactions, the aggregate financial benefit received from
such transactions should be considered in order to determine whether the de minimis
exclusion would be applicable. 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