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HomeMy WebLinkAbout07-502 CarterR. 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