HomeMy WebLinkAbout07-502 McMichaelR. Samuel McMichael, Esquire
142 Locust Street Box 296
Oxford, PA 19363
Dear Mr. McMichael:
ADVICE OF COUNSEL
January 10, 2007
07 -502
This responds to your letter of November 8, 2006, and your facsimile
transmission dated January 8, 2007, 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., would impose any prohibitions or restrictions as to the hiring of
an individual as a township roadmaster where the individual's business would
contractually provide snow removal services to the township and the provision of such
services would typically fall under the supervision /direction of the roadmaster.
Facts: You are the Solicitor for Elk Township ( "Township ") in Chester County.
You have been authorized by the Township Board of Supervisors ( "Board ") and Brian
Carter ("Carter "), a potential Township employee, to request an advisory from the State
Ethics Commission as to the following.
The Board is considering candidates for the position of Township roadmaster for
2007. Carter is one of the candidates for the position. As roadmaster, Carter would be
paid an hourly rate and would be considered an at will" Township employee, with the
Township making all required employee contributions and having the ability to remove
Carter from the position as provided by the Second Class Township Code.
In your initial advisory request, you stated that as roadmaster, Carter would
perform the statutory duties of a roadmaster as set forth in the Second Class Township
Code, 53 P.S. § 67302. In a letter dated December 4, 2006, submitted by the Township
Supervisors to the Legal Division of the State Ethics Commission, the Board indicated
that Carter's specific duties would include, but might not be limited to, the following:
• Purchasing equipment, tools and materials with approval.
• Investigating complaints and recommending the course(s) of action.
• Responding to emergency situations with regard to Township roads.
• Monitoring the performance of road contractors.
• Reviewing and approving invoices from haulers.
• Making recommendations to the Board as to which roads would need
improvements and scheduling roadwork when necessary.
McMichael, 07 -502
January 10, 2007
Page 2
• Directing and participating in snow /ice removal operations, which would
include driving the Township truck.
• Estimating project costs as necessary.
• Directing and coordinating maintenance of the Township truck.
• Patching potholes, installing and repairing street signs, and cleaning and
repairing storm water systems.
• Assisting in traffic control as needed and removing debris from roadways
and roadsides.
In your facsimile transmission dated January 8, 2007, you stated that as
roadmaster, Carter would occasionally make minor purchases while completing repairs
in the Township, but that the Township would review and approve those purchases.
You added, We do not expect any other independent exercise of authority."
(McMichael faxed transmission of January 8, 2007, at 1).
You stated that the Township frequently has problems with obtaining dependable
contractors to remove snow or ice on an emergency basis. Historically, the Township
receives no bids when it advertises for snow removal services, since most contractors in
the vicinity do not want to commit to providing services on an as- needed basis. Instead,
the Township typically receives offers to provide services based upon the availability of
the contractors. In the past, Carter has provided snow removal services for the
Township through his company, Carter & Son ( "Company ").
You stated that unless the Township receives bids from other contractors, the
Board will likely need to contract with the Company for snow removal in the future. The
projected compensation would exceed $500, since the estimated cost for the supply of
three trucks with drivers is $100 per hour /per truck. The roadmaster would typically
supervise or direct the operation of these services.
The Township often needs snow /ice removal services in the middle of the night
or at times when the Board might not be available. Carter would operate the
Township's equipment or trucks to remove snow or ice. The Board would like to
authorize Carter to use the Company's equipment, as he would determine to be
necessary, without continuous contact with or approval by the Board. Carter would
determine the frequency, rate, and duration of use of his equipment, and the operators
of his equipment would not be Township employees.
You ask the following specific inquiries based upon the assumptions that the
Township would appoint Carter as roadmaster, satisfy all bidding and notice
requirements, and then engage the Company for snow removal: (1) whether the Ethics
Act would permit the Township to establish clear guidelines and /or rules permitting
Carter to supervise and /or administer the implementation of the contractual services;
and (2) whether the Ethics Act would permit the Township to include terms in the
contract that would reserve the general supervision /administration of the contract with
one of the supervisors, who would provide directions to Carter for implementation.
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.
Before your specific inquiries may be considered, it is necessary to determine
whether Carter, as Township roadmaster, would be considered a "public employee"
subject to the restrictions of the Ethics Act.
McMichael, 07 -502
January 10, 2007
Page 3
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5)
any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa. C. S. § 1102.
The regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
McMichael, 07 -502
January 10, 2007
Page 4
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1 (Emphasis added).
In the instant matter, the Second Class Township Code provides the following
duties for a roadmaster:
McMichael, 07 -502
January 10, 2007
Page 5
§ 67302. Duties of roadmasters
The roadmasters shall:
(1) Report to the board of supervisors any information that
may be required by the board of supervisors and by the
Department of Transportation.
(2) Inspect all roads and bridges as directed by the board of
supervisors.
Do or direct to be done all work necessary to carry out
the responsibilities imposed by the board of supervisors
with respect to the maintenance, repair and construction
of township roads.
(3)
53 P.S. § 67302.
In applying the definition of "public employee" and the related regulatory criteria
in the instant matter, it is noted that the various letters that have been submitted for
purposes of obtaining an advisory have set forth ambiguous /inconsistent descriptions of
Carter's prospective duties and authority as roadmaster. It is not possible within the
context of an advisory to resolve ambiguous /inconsistent submitted facts.
Therefore, you are generally advised that to the extent Carter's duties would be
limited to the statutory duties of roadmaster set forth in the Second Class Township
Code, and Carter would have no responsibility for taking or recommending official action
of a non - ministerial nature with regard to any of the five categories set forth in the Ethics
Act's definition of the term "public employee," Carter would not be considered a "public
employee" subject to the Ethics Act. See, 65 Pa.C.S. § 1102 ( "public employee "); 51
Pa. Code § 11.1 ( "public employee ")(v)(A). To the extent Carter would not fall within the
Ethics Act s definition of "public employee," he would not, as Township roadmaster, be
subject to Sections 1103(a), 1103(f) or 1103(j) of the Ethics Act, which provide as
follows:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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.
McMichael, 07 -502
January 10, 2007
Page 6
(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(a), (f), (j).
However, if Carter as roadmaster would have responsibility for taking or
recommending official action of a non - ministerial nature with regard to any of the five
categories set forth in the Ethics Act's definition of the term "public employee," such as
contracting or procurement or other activity where the official action would have an
economic impact act of greater than a de minimis nature on the interests of any person,
Carter would a "public employee" as defined by the Ethics Act and he would be
subject to the prohibitions, restrictions and requirements of Sections 1103(a), 1103(f),
and 1103(j) of the Ethics Act above.
You are generally advised that if the Board would authorize Carter as roadmaster
to exercise discretion as to the use of contractors or private equipment or operators for
Township work, then Carter would be considered a "public employee" subject to the
provisions of the Ethics Act. As a public employee, Carter would generally be prohibited
under Section 1103(a) of the Ethics Act from using the authority of his Township
position for the financial benefit of himself or the Company. In each instance of a
conflict of interest, Carter would be required to abstain from participation and to fully
satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
Additionally, to the extent Carter would be considered a "public employee"
subject to the Ethics Act, the restrictions and requirements of Section 1103(f) of the
Ethics Act would have to be satisfied as to each Township contract with the Company
that would be valued in excess of $500.
Turning to your specific inquiries, you are advised that Sections 1103(a), 1103(f),
and 1103(j) of the Ethics Act —which apply to public officials and public employees- -
would not govern the proposed conduct of the Township as a governmental body.
Therefore, the State Ethics Commission does not have the statutory jurisdiction to
address the prospective conduct of the Township in this matter.
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
McMichael, 07 -502
January 10, 2007
Page 7
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion: If Brian Carter ( "Carter") would be hired as roadmaster for Elk
Township ( "Township "), he would not be considered a "public employee" subject to the
Ethics Act to the extent his duties would be limited to the statutory duties of roadmaster
set forth in the Second Class Township Code, 53 P.S. § 76302, and he would have no
responsibility for taking or recommending official action of a non - ministerial nature with
regard to any of the five categories set forth in the Ethics Act's definition of the term
"public employee." If Carter as roadmaster would have responsibility for taking or
recommending official action of a non - ministerial nature with regard to any of the five
categories set forth in the Ethics Act's definition of the term "public employee," such as
contracting or procurement or other activity where the official action would have an
economic impact of greater than a de minimis nature on the interests of any person,
Carter would be a "public employee" subject to the rohibitions, restrictions and
requirements of the Ethics Act. If the Township Board of Supervisors would authorize
Carter as Township roadmaster to exercise discretion as to the use of contractors or
private equipment or operators for Township work, then Carter would be considered a
"public employee" subject to the provisions of the Ethics Act. As a public employee,
Carter would generally be prohibited under Section 1103(a) of the Ethics Act from using
the authority of his Township position for the financial benefit of himself or his company,
"Carter & Son" (also referred to herein as the "Company "). In each instance of a conflict
of interest, Carter would be required to abstain from participation and to fully satisfy the
disclosure requirements of Section 1103(jJ) of the Ethics Act. To the extent Carter would
be considered a "public employee" subject to the Ethics Act, the restrictions and
requirements of Section 1103(f) of the Ethics Act would have to be satisfied as to each
Township contract with the Company that would be valued in excess of $500. 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,
Robin M. Hittie
Chief Counsel