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HomeMy WebLinkAbout06-531 ropelewskiAlexander J. Ropelewski 311 Ewings Mill Road Moon Township, PA 15108 ADVICE OF COUNSEL March 23, 2006 06 -531 Re: Conflict; Public Official /Employee; Township Supervisor; Reimbursement for Expenses Incurred By Attending PSATS Convention; Contract. Dear Mr. Ropelewski: This responds to your letter of January 28, 2006, 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 the receipt of township reimbursement for expenses incurred in attending a Pennsylvania State Association of Township Supervisors annual convention. Facts: As Chairman of Board of Supervisors of Moon Township ( "Township "), Allegheny County, you seek an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. You are not a working supervisor. The only compensation you receive from the Township is your monthly salary as a supervisor. You have been designated to attend the Pennsylvania State Association of Township Supervisors ( "PSATS ") annual convention in April 2006 as the Township's voting delegate. In September 2005, in response to a solicitation by PSATS to present an educational program to township supervisors at the annual convention, you submitted two proposals dealing with Information Technology issues faced by townships. One of your proposals was accepted, which proposal will be presented by you at the PSATS convention in April 2006. In a private capacity, you have formed a consulting company to provide IT consulting services to local governments to help them choose cost - effective solutions. You state that while your principle purpose in attending the convention is to educate Ropelewski, 06 -531 March 23, 2006 Page 2 yourself about trends, issues and products for townships and to vote on resolutions that set PSATS policy, you do intend to hand out business cards for your consulting business to people you meet at the convention who may be interested in the services that you offer. You further state that you may also send out a small mailer to township officials in your immediate area to make them aware that you will be giving the presentation at the PSATS convention and to encourage them to attend. You note that you created the business cards and the mailer at your own expense. You seek guidance as to the proper rate of township reimbursement for expenses that you will incur at the PSATS convention. 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. As a Township Supervisor, you are a public official as that term is defined in the Ethics Act, and hence you are 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, Ropelewski, 06 -531 March 23, 2006 Page 3 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. "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 consideration of his current public employment with the Commonwealth or a political subdivision. 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(f) of the Ethics Act 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). 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 Ropelewski, 06 -531 March 23, 2006 Page 4 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. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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). Ropelewski, 06 -531 March 23, 2006 Page 5 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, Pavlovic, Opinion 02 -005. 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). 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, your consulting business would be considered a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in your public capacity as a Township Supervisor in matters that would financially impact you, your business, or a private customer /client. Thus, if a matter would come before the Township Board of Supervisors involving such a private customer /client, you would generally be required to abstain from participating and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. It is noted that your inquiry as to expense reimbursement for attending a PSATS convention is posed generally; therefore, this advisory is limited to providing the following general response. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /employee may receive a pecuniary benefit under the Ethics Act. In such cases, other laws must be considered to determine whether the pecuniary benefit is permitted under the Ethics Act as authorized in law or is prohibited as a private pecuniary benefit without authorization in law. A financial gain to a public official /public employee that is other than compensation provided for by law is a private pecuniary benefit. Thompson, Opinion 99 -005, at 3 -4. In the instant matter, the following provision of the Second Class Township Code must be reviewed in order to properly apply the Ethics Act to your inquiry. Section 65607 of the Second Class Township Code provides as follows: § 65607. Duties of supervisors The board of supervisors shall: Ropelewski, 06 -531 March 23, 2006 Page 6 (4) Authorize attendance at conferences, institutes, schools and conventions. Any supervisor, elected or appointed officer or township employe may if directed by the board of supervisors attend any conference, institute, school or convention dealing with the duties and functions of elected or appointed officers or employes. The expenses for attending the meetings may be paid by the township and are limited to the registration fee, mileage for the use of a personal vehicle or reimbursement of actual transportation expense going to and returning from the meeting plus all other actual expenses that the board of supervisors agrees to pay. Every attendee shall submit to the board of supervisors an itemized account of expenses incurred at the meeting. The board of supervisors may authorize employes to be compensated at their regular employe rate, and auditors to be compensated at the rate of ten dollars ($10) for each hour up to a maximum of five hours per day, during their attendance at the meeting. 53 P.S. § 65607(4). Per the foregoing provision of the Second Class Township Code, the board of supervisors shall authorize township supervisors to attend conferences, institutes, schools, and conventions. The township may pay the expenses for attending the meetings, which expenses are limited to the registration fee, mileage for use of a personal vehicle, or reimbursement of actual transportation expense going to and returning from the meeting, plus all other actual expenses that the board of supervisors agrees to pay. Supervisors attending such meeting shall submit to the board of supervisors an itemized account of expenses incurred at the meeting. The above quoted provision of the Second Class Township Code appears to be limited in its application. Section 65607(4) limits the payment of expenses for township supervisors authorized to attend conferences, institutes, schools, and conventions dealing with the duties and functions of elected or appointed officers or employes to the registration fee, mileage for use of a personal vehicle, or reimbursement of actual transportation expense going to and returning from the meeting, plus all other actual expenses that the board of supervisors agrees to pay. Attendees are required under this section to submit to the board of supervisors an itemized account of expenses incurred at the meeting. Thus, assuming your request for reimbursement would be limited to the registration fee, mileage for use of a personal vehicle, or reimbursement of actual transportation expense going to and returning from the meeting, plus all other actual expenses that the Township Board of Supervisors would agree to pay, your receipt of such reimbursement from the Township would not constitute a private pecuniary benefit and you would not run afoul of Section 1103(a) of the Ethics Act. However, if your request for reimbursement would go beyond the scope of the expenses set forth in Section 65607(4), any payment by the Township for such expenses would constitute a private pecuniary benefit under Section 1103(a) of the Ethics Act. Finally, you indicate that your consulting business would provide IT consulting services to local governments. Therefore, you are generally advised that if you /your consulting business would enter into a contract with the Township you are advised that to the extent you or your consulting business would contract with the Township in an amount of $500.00 or more, the restrictions under Section 1103(f) set forth above would have to be observed. Specifically, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body and that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Ropelewski, 06 -531 March 23, 2006 Page 7 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. Conclusion: As a Supervisor for Moon Township ( "Township "), 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. Your consulting business would be considered a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in your public capacity as a Township Supervisor in matters that would financially impact you, your business, or a private customer /client. Thus, if a matter would come before the Township Board of Supervisors involving such a private customer /client, you would generally be required to abstain from participating and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your question regarding expense reimbursement from the Township for attending the annual Pennsylvania State Association of Township Supervisors' ( "PSATS ") convention, assuming your request for reimbursement would be limited to the registration fee, mileage for use of a personal vehicle, or reimbursement of actual transportation expense going to and returning from the convention, plus all other actual expenses that the Township Board of Supervisors would agree to pay, your receipt of such reimbursement from the Township would not constitute a private pecuniary benefit and you would not run afoul of Section 1103(a) of the Ethics Act. However, if your request for reimbursement would go beyond the scope of the expenses set forth in Section 65607(4) of the Second Class Township Code, any payment by the Township for such expenses would constitute a private pecuniary benefit under Section 1103(a) of the Ethics Act. Turning to Section 1103(f) of the Ethics Act, if you or your consulting business would enter into a contract with the Township in an amount of $500.00 or more, the restrictions under Section 1103(f) set forth above would have to be observed. 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 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 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