Loading...
HomeMy WebLinkAbout08-525 MurphyRaymond F. Sekula, Esquire 1725 Fifth Avenue Arnold, PA 15068 -4471 Dear Mr. Sekula: ADVICE OF COUNSEL March 14, 2008 08 -525 This responds to your letters dated February 4, 2008, and February 8, 2008, 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 recorder of deeds with regard to being employed by a company that contracts with the county to provide maintenance and support for a software application purchased from such company for use by the office of the recorder of deeds. Facts: As Solicitor for the Recorder of Deeds ( "Recorder of Deeds ") of Westmoreland County ("County "), Pennsylvania, you have been authorized by Tom Murphy ( "Murphy "), the Recorder of Deeds of the County, to request an advisory from the State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Eight years ago, Murphy and the Westmoreland County Commissioners ( "County Commissioners ") purchased a software application (hereinafter referred to as the Software ") from a company named "Document Technology Systems" ("DTS "), located at 525 West Portage Trail Extension, Cuyahoga Falls, OH 44224. The Software is used to handle the daily business operations of the Office of the Recorder of Deeds ( "the Recorder's Office "). The County Commissioners entered into a maintenance agreement ("the Agreement ") with DTS to provide support required for the daily operations of all DTS accounts. The Agreement is renewed annually based upon a flat rate and does not limit the number of calls that can be made to DTS for any maintenance regarding the Software. You state that all calls for any such maintenance are made by the Westmoreland County Information Systems Department, which is not a department subject to Murphy's supervision. The annual renewal of the Agreement is the only current business between the County and DTS. You state that DTS would like to employ Murphy as a Marketing Representative due to Murphy's extensive knowledge of DTS's product, his understanding of potential Sekula, 08 -525 March 14, 2008 Page 2 customer needs, and the honors he has received for the operation of the Recorder's Office. Murphy intends to continue serving as Recorder of Deeds while employed with DTS. You state that in his official capacity as Recorder of Deeds, Murphy is not by law subject to any mandatory work hours or work schedule. Rather, as an elected County row officer, Murphy has the authority to set his own work hours. You state that as a result, Murphy would not perform any work for DTS on County work hours. You further state that Murphy would not use any employees, equipment, or supplies of the Recorders' Office to perform any work for DTS. Finally, you state that Murphy has assured you that he would have no dealings with DTS regarding any relationship that DTS has or may have with the County. Based upon the above submitted facts, you ask whether the Ethics Act would permit Murphy to work for DTS while serving as the County Recorder of Deeds. 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 the County Recorder of Deeds, Murphy is a public official 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 Sekula, 08 -525 March 14, 2008 Page 3 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. "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 Sekula, 08 -525 March 14, 2008 Page 4 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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (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. 65 Pa. C. S. § 1103(f). The terms "contract," "governmental body," and "governmental body with which a public official or public employee is or has been associated" are defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has Sekula, 08 -525 March 14, 2008 Page 5 been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa. C. S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In applying the above provisions of the Ethics Act to the instant matter, 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 or private client(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a private employer or business with which the public official /public employee is associated or a client of the private employer or business 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 in the instance of a voting conflict, to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Section 1103(a) of the Ethics Act would not prohibit Murphy from being employed with DTS. If Murphy would become employed with DTS, DTS would be a business with which Murphy would be considered to be associated, and pursuant to Sekula, 08 -525 March 14, 2008 Page 6 Section 1103(a) of the Ethics Act, in his public capacity as Recorder of Deeds, Murphy would generally have a conflict of interest in matters that would financially impact himself, DTS, or DTS's clients. See, Kannebecker, supra; Miller, supra. Murphy would also be prohibited from using the authority of his public position, or confidential information accessed or received as a result of being in his public position, to effectuate a private pecuniary benefit to DTS through a detriment to a competitor. See, Pepper, Opinion 87 -008. Pursuant to Section 1103(a) of the Ethics Act, Murphy would specifically have a conflict of interest in matters pertaining to the Agreement or any future contract(s) between DTS and the County or the Recorder's Office. In each instance of a conflict of interest, Murphy would be required to abstain fully from participation and in the instance of a voting conflict, to also satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. As for Section 1103(f) of the Ethics Act, you are advised that the governmental body with which Murphy is associated is the Recorder's Office. See, Yatron, Opinion 02 -008. Any contract(s) between DTS and the Recorder's Office valued at $500 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that Murphy would remain Recorder of Deeds and DTS would remain a business with which Murphy is associated. Under Section 1103(f) of the Ethics Act, in his capacity as Recorder of Deeds, Murphy would be prohibited from having any supervisory or overall responsibility for the implementation or administration of any such contract(s). The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the County Code. Conclusion: As the Recorder of Deeds of Westmoreland County ( "County "), Pennsylvania, Tom Murphy ( "Murphy ") 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. Based upon the submitted facts that: (1) eight years ago, Murphy and the Westmoreland County Commissioners ( "County Commissioners ") purchased a software application (hereinafter referred to as the Software ") from a company named "Document Technology Systems" ( "DTS ") to handle the daily business operations of the Office of the Recorder of Deeds ( "the Recorder's Office "); (2) the County Commissioners entered into a maintenance agreement ( "the Agreement ") with DTS, which Agreement is renewed on an annual basis and provides, at a flat rate, support required for the daily operations of all DTS accounts; (3) DTS would like to employ Murphy as a Marketing Representative; (4) Murphy intends to continue serving as Recorder of Deeds while employ with DTS; (5) in his official capacity as Recorder of Deeds, Murphy is not by law subject to any mandatory work hours or work schedule; and (6) as an elected County row officer, Murphy has the authority to set his own work hours, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit Murphy from being employed with DTS. If Murphy would become employed with DTS, DTS would be a business with which Murphy would be considered to be associated, and in his public capacity as Recorder of Deeds, Murphy would generally have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters that would financially impact himself, DTS, or DTS's clients. Murphy would also be prohibited from using the authority of his public position, or confidential information accessed or received as a result of being in his public position, to effectuate a private pecuniary benefit to DTS through a detriment to a competitor. Pursuant to Section 1103(a) of the Ethics Act, Murphy would specifically have a conflict of interest in matters pertaining to the Agreement or any future contract(s) between DTS and the County or the Recorder's Office. In each instance of a conflict of interest, Murphy would be required to abstain fully from participation and in the instance of a voting conflict, to also satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The governmental body with which Murphy is associated is the Recorder's Office. Any contract(s) between DTS Sekula, 08 -525 March 14, 2008 Page 7 and the Recorder's Office valued at $500 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that Murphy would remain Recorder of Deeds and DTS would remain a business with which Murphy is associated. Under Section 1103(f) of the Ethics Act, in his capacity as Recorder of Deeds, Murphy would be prohibited from having any supervisory or overall responsibility for the implementation or administration of any such contract(s). 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