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HomeMy WebLinkAbout06-547 WilsonLarry D. Loperfito, Esquire Geary and Loperfito, LLC 158 Grant Avenue Vandergrift, PA 15690 Dear Mr. Loperfito: ADVICE OF COUNSEL April 14, 2006 06 -547 This responds to your letter of March 6, 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 borough council member from participating in matters that would financially impact the borough engineering firm that employs the council member in a non - professional capacity. Facts: As Solicitor for Vandergrift Borough (Borough), you seek an advisory from the tate Ethics Commission on behalf of Christine A. Wilson (Wilson), a Borough Council Member. You have submitted the following facts which may be fairly summarized as follows. Wilson is employed by Bove Engineering as a non - professional employee. Wilson has advised that her employment with the engineering firm is not financially dependent on the firm obtaining any contractual work from the Borough. Bove Engineering has been the long time engineer for the Borough and Wilson has abstained from voting on the appointment of Bove Engineering. The Borough is considering a sewer separation project that is not the result of an order from the state or federal government but rather a voluntary separation action at this time. Engineering: You pose the following questions regarding Wilson vis -a -vis Bove 1. Whether Wilson may participate regarding fee services by Bove Engineering relating to any sewer separation project. Loperfito- Wilson, 06 -547 April 14, 2006 Page 2 2. Whether Wilson may participate on any proposed sewer separation project that involves the payment of fees to Bove Engineering or on how the project should proceed in that she is a non - professional employee of Bore Engineering. 3. Whether Wilson may participate regarding any actions by Bove Engineering that involve fees for services rendered to the Borough. 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 Council Member for Vandergrift Borough, Wilson is a public official as that term is defined in the Ethics Act, and hence she 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. Loperfito- Wilson, 06 -547 April 14, 2006 Page 3 "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 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. Loperfito- Wilson, 06 -547 April 14, 2006 Page 4 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 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 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 customer /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. As to your inquiry, in that Wilson is an employee of Bove Engineering, that firm is a business with which she is associated as that term is defined under the Ethics Act. Accordingly, Wilson would have a conflict regarding matters that would financially impact Bove Engineering, could not participate and would have to comply with the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to the three specific questions you have posed, if Wilson has a conflict as to the sewer separation project (that is, if there would be a financial impact on Bove Engineering), she could not participate, even as to discussions. In this regard, the Commission has ruled the use of authority of office extends beyond making motions and voting and also includes actions, such as lobbying other board members, speaking as to motions or advocating for a certain result. See, Juliante, Order 809. As to the matter of fees of Bove Engineering, the Commission has held that a public official has a conflict in participating or voting as to the approval of the payments to a business with which associated. See, Miller, supra. 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 respective municipal code. Conclusion: As Borough Council Member for Vandergrift Borough, Wilson 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. In that Wilson is an employee of Bove Engineering, that firm is a business with which she is associated as that term is defined under the Ethics Act. Accordingly, Wilson would have a conflict regarding matters that would financially impact Bove Engineering, could not articipate and would have to comply with the disclosure requirements of Section 1103) of the Ethics Act. Loperfito- Wilson, 06 -547 April 14, 2006 Page 5 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