HomeMy WebLinkAbout07-589 GiangriecoMichael J. Giangrieco, Esquire
26 Public Avenue
P.O. Box 126
Montrose, PA 18801 -0126
ADVICE OF COUNSEL
October 17, 2007
07 -589
Dear Mr. Giangrieco:
This responds to your faxed transmission dated September 18, 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 present any prohibitions or restrictions upon a county
commissioner, who, in his private capacity, is an attorney with a firm that practices law
before the county's court of common pleas.
Facts: In your private capacity, you are a practicing attorney. You state that you
expect to be elected to the position of County Commissioner of Susquehanna County
( "County ") in the November general election.
You state that as a County Commissioner, you would vote on the budget for the
County, which would include the budget for the County Court of Common Pleas, as well
as the budget and salaries for the District Attorney's office. You state your expectation
that you and your law firm would continue to practice before the County Court of
Common Pleas during your term as a County Commissioner.
You ask whether you would have a conflict of interest under the Ethics Act as to
being an active practicing attorney before the County Court of Common Pleas while
also serving as a County Commissioner.
It is administratively noted that as a County Commissioner, you would also serve
on the County Salary Board. 16 P.S. § 1622.
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.
Giangrieco, 07 -589
October 17, 2007
Page 2
Upon taking office as a County Commissioner, you would become a "public
official" as that term is defined by the Ethics Act, and hence you would be subject to the
provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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), (j).
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.
Giangrieco, 07 -589
October 17, 2007
Page 3
"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.
"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.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
The use of authority of office is not limited merely to voting, but extends 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.
In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the
public official /public 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. 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.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
Giangrieco, 07 -589
October 17, 2007
Page 4
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa. C. S. §§ 1103(b), (c).
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, 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- 10).
If a 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 generally have a conflict of interest as to such
matter. Kannebecker, supra; Miller, 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.
Having established the above general principles, you are advised as follows.
Section 1103(a) of the Ethics Act would apply to you in your public capacity as a
County Commissioner but would not apply to you in your private capacity as an
attorney. Cf., Shaulis v. State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003).
Section 1103(a) of the Ethics Act would not prohibit you from continuing to practice law
before the County Court of Common Pleas in your private capacity while also serving as
a County Commissioner. Cf., Confidential Advice, 97 -596; Conway, Advice 92 -542.
However, in your public capacity as a County Commissioner, you would generally have
a conflict of interest in matters that would financially impact you, your law firm, or your
law firm's clients. In each instance of a conflict of interest, you would be required to
abstain fully from participation and to satisfy the disclosure requirements of Section
1103(j) of the Ethics Act.
Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act
or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the
Ethics Act, your participation as a public official in matters involving the various budgets
and salaries submitted to the County Commissioners and County Salary Board would
not be prohibited under the Ethics Act.
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 County Code or the Rules of Professional Conduct.
Giangrieco, 07 -589
October 17, 2007
Page 5
Conclusion: Upon taking office as a County Commissioner for Susquehanna
County ( "County "), you would become 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
law firm is a business with which you are associated. Section 1103(a) of the Ethics Act
would not prohibit you from continuing to practice law before the County Court of
Common Pleas in your private capacity while also serving as a County Commissioner.
In your public capacity as a County Commissioner, you would generally have a conflict
of interest in matters that would financially impact you, your law firm, or your law firm's
clients. In each instance of a conflict of interest, you would be required to abstain fully
from participation and to satisfy the disclosure requirements of Section 1103(j) of the
Ethics Act. Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics
Act or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the
Ethics Act, your participation as a public official in matters involving the various budgets
and salaries submitted to the County Commissioners and County Salary Board would
not be prohibited under the Ethics Act. 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