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CITY OF ALLENTOWN BOARD OF ETHICS REQUEST OF A CITIZEN FOR ADVISORY OPINION Procedural Backaround On August 23, 2010, the Board of Ethics of the City of Allentown received a request for a Written Advisory Opinion (‘Request’) concerning an elected official (‘Official’) of the City of Allentown. 2. On August 24, 2010, in accordance with the requirements of 171.10 (G) of the Board of Ethics, the Board acknowledged the receipt of the Request in writing and sent a copy of the Request to the Official 3. On September 2, 2010, the Official in accordance with § 171.10 (H) of the Code of Ethics, responded in writing to the Request but did not request a hearing. 4. Prior to discussing the Request on its merits, the Board of Ethics privately addressed questions of possible conflicts which might preclude their individual participation in consideration of the issues xd. J. Jackson Eaton, lll, a Board Member, recused himself because of a possible conflict of interest resulting from work performed by his law firm for the City of Allentown. The Rev. Canon Maria W.E. Tjeltveit initially desired to recuse herself because of a longstanding friendship with the wife (who is mentioned by name in the body of the Request) of the Official. 5. __ If two (2) members of the Board of Ethics had recused themselves, this would leave only two (2) members of the Board to hear the case. This would not constitute a quorum and the case could not be heard. Accordingly Rev. Canon Maria W.E. Tjeltveit agreed to hear the case as required so that the case could proceed (see Footnotes). 6. After proper advertisements, the Board of Ethics met on September 16, 2010 and again on September 21, 2010. 7. its meetings of September 10, 2010 and September 21, 2010, the Board convened in Executive Session to consider the Request. 66 Pa.C.S.A. §708 (a)(1). Alleged Violations ‘The Complainants did not cite any specific sections of the Code of Ethics in their Request but the substance of the complaints appears to be the following: A. The failure of the Official to obtain building permits in a timely manner and to provide a realistic estimate of the cost of the improvements when the building permits were ultimately applied for. B. The Offcial’s use of a building contractor ("Contractor") who “may be ‘engaged in doing work for the City and is purported to be a major contributor to the elected official's campaign funds.” c. The possible disparity between the cost of the work performed by the Contractor and the amount of money the Contractor was actually paid. Inasmuch as the Complainants failed to cite any specific section of the Ethics Code allegedly violated, the Ethics Board has itself reviewed the Ethics Code to identify any sections which might be applicable to the charges made. Section 171.04 of the Ethics Code provides as follows: “171.04 USE OF POSITION OR PRESTIGE FOR PERSONAL BENEFIT No official or employee shall use, nor allow others to use, the authority, ttle or prestige of public office for the attainment of private financial, social or political benefits in any manner that is inconsistent with public interests. (13137 7/1/92) A. Use for Commercial Purposes No official or employee shall permit their names or official titles to be used by a non-public enterprise in any manner which would lease reasonable observers to believe that those who deal with the enterprise may receive special treatment or advantages as a result of a formal association with the office or employee. (13137 711192). B. Use for Public Advantage No official or employee shall use official letterhead or refer to their public position as a means of inducing or intimidating persons to resolve disputes more favorably, provide preferential treatment, or give free tickets, discounts, favors or other advantages. (13137 (7/1/92)" Section 171.02 of the Ethics Code provides as follows: "171.02 CONFLICT OF INTEREST No official or employee, whether paid or unpaid, shall engage in any business or transaction or shall have any financial or other private interest, direct or indirect, which is incompatible with the proper discharge of his official duties in the public interest or which would impair his independence of judgment or action in the performance of his official duties unless full disclosure is made in writing to the Board of Ethics. Such disclosure shall be a public record. (11821 9/1/70) C. Gifts and Favors No official or employee or associate of either of them shall accept any valuable gift, whether in the form of service, loan, , oF promise, from any person, firm, corporation or association which to his knowledge is interested, directly or indirectly, in any manner whatsoever, in business dealings with the City; nor shall such official or employee or associate of either of them accept any gift, regardless of value, favor or thing of value that may tend to influence him in the discharge of his duties or grant in the discharge of his duties any improper favor, service or things. (11821 9/1/70)" A. AS TO THE BUILDING PERMITS. It is evident that the Official may have failed to obtain timely permits for at least the initial portion of the work and that the permits which were ultimately obtained for the initial portions of the work may have been issued on the basis of low estimates. In response to this charge, the Official states that the repair work which was performed at his home either did not require permits or to the extent permits were required, he relied on the Contractor to obtain permits. Although it is true that the ultimate responsibilty for obtaining permits and for stating an appropriate estimate for the cost of the work rests with the property owner, the Ethics Board does not believe that any failure on the part of the Official to obtain a timely permit or to state an appropriate amount of the cost of the work would constitute a violation of Section 171.04, to wit: using “the authority, tile or prestige of public office for the obtainment of private financial, social or political benefits in any manner that is inconsistent with public interest.” There is no evidence that the Offi used the authority, ttle or prestige of his office to avoid the necessity of obtaining permits in a timely manner or to reduce the cost af obtaining permits. In addition, there would have been no incentive for the Official to underestimate the cost of the remedial work performed at the expense of his insurance company. Band C, AS TO THE PERFORMANCE OF THE WORK BY A CONTRACTOR WHO HAS BENEFITED FROM CITY CONTRACTS AND CONTRIBUTED MONEY TO THE OFFICIAL'S CAMPAIGN FUND. ‘The Board accepts the response of the Official that he paid the sum of more than $26,000.00 to the Contractor for one portion of the work (a not insubstantial amount) and that his insurance company paid the sum of more than $23,000.00 to the Contractor for the additional work performed to remedy an insured casualty to the Official's home. ‘There is absolutely no evidence that the performance of the work by the Contractor constitutes a violation of Section 171.04, Use of Prestige for Personal Benefits or Section 171.02, Conflict of Interest with specific reference to subsection C which prohibits an official from accepting any valuable gift, whether in the form of service, loan, thing or promised, from any person, firm, corporation, or association which to his knowledge is interested, directly or indirectly, in any manner whatsoever, in business dealings with the City or accepting any gift, favor or thing of value which would influence him in the discharge of his duties, Discussion No hearing had been requested by the Official (see Code of Ethics, §171.10 (!)). Consequently, the Board of Ethics convened in Executive Sessions to discuss the matter preparatory to rendering its written Advisory Opinion (see Code of Ethics, §171.10 (E)). The Board has carefully reviewed the Code of Ethics and the allegations of the Request and does not find any basis to determine that there is a violation of any section of the Code of Ethics. Opinion Itis the opinion of the Board of Ethics after review of the Request for a written Advisory Opinion, the documents submitted by the Complainants, and the response of the Official and after discussion and deliberations that there is no violation of the Code of Ethics and the matter is dismissed. ¢[21 1. rule of necessity: a rule permitting or requiring a judge or other official to adjudicate a case despite bias o personal interest when disqualification would result in the lack of any competent tribunal Merriam-Websters Dictionary of Law, © 1996 Merriam-Webster, Inc. Footnotes 2, See Commonwealth of Pennsylvania Administrative Law and Procedure 15Ak314k. Bias, Prejudice or ‘Other Disqualification to Exercise Powers. Most Cited Cases. ceeds, under rule of necessity, to consider case in which members have personal itis imperative that tribunal invoke doctrine on the record and explain its applicability to case before tribunal, 3. Siteman v, City of Allentown, Pa. Commonwealth Court, 695 A.2d 888 (1999) 4, Stroudsburg Area School District v, Kelly, Pa. Commonwealth Court, 701 A.2d 1000 (1997)

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