Loading...
HomeMy WebLinkAbout85-556 BrazilSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 24, 1985 ADVICE OF COUNSEL John J. Brazil, Esquire 85 -556 Connell Building, Suite 827 Scranton, PA 18503 Re: Borough Councilman, Electrical Contractor, Conflict of Interest Dear Mr. Brazil: This responds to your letter of June 7, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a Borough Councilman, who is also an electrical contractor, may participate in matters in which he has or will perform private services. Facts: You have presented the above issue to the State Ethics Commission as Solicitor for the Borough of Moosic. One of the borough councilman is also a self employed electrical contractor. During the course of his duties as a councilman, various matters are presented to the borough council regarding private projects such as land uses, subdivision plans and zoning changes. The borough councilman may be called upon to provide contactor services for some of these projects. As a result, you have presented the above issue for review and consideration. Discussion: As a member of the borough council, this individual is a public official as that term is defined in the State Ethics Act and his conduct is, therefore, subject to the requirements thereof. 65 P.S. §402; Kilmer, 79 -037; Davis, 84 -012. The Ethics Act provides, in part, as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). John J. Brazil, Esq. June 24, 1985 Page 2 The Commission has reviewed a number of situations closely related to the one herein presented and has determined that, within the above provision of law, a public official may not participate to any extent in a matter, as a public official, where he has a private pecuniary interest. Sowers, 80 -050. For example, the Commission has concluded that a zoning officer who is also a developer could not issue permits to himself. Simmons, 79 -056. Similarly, the Commission has concluded that a developer who is an elected township supervisor could not inspect or approve his own work as a developer. See Sowers, supra. Additionally, the Commission has also determined that an auditor may not audit the township books, where the spouse of the auditor serves as supervisor. Restivo, 80 -518 and Detweiler, 81 -648. The Commission has also determined, on a number of occasions, that municipal engineers could not review or participate in.a matter involving a private client. Stillwagon, 84 -600. Finally, the Commission has ruled that a township supervisor may not vote or participate in a matter, such as the approval of a subdivision plan, if he has performed professional surveying services in relation to such plan. Dawson, 85 -513; Downs, 85 -554. Thus, the borough councilman may not vote or otherwise participate in a matter in which he has performed private electrical services or where he has a pecuniary interest. In your request, it appears as though a related issue is raised, in that, the councilman may not be called upon to provide these services until after the plan is approved. In this respect, he may not have an actual interest at the time of the council's action. This factor, however, would not change the above result. The Commission may address "other areas of possible conflict" pursuant to Section 3(d) of the Ethics Act. 65 P.S. §403(d). Such a conflict is determined in light of the enumerated intent of the Act which is to insure that the financial interests of a public official do not conflict or appear to conflict with the public trust. 65 P.S. §401. See Alfano, 80 -007, Nelson, 85 -009. If a borough councilman were to obtain employment regarding a project upon which he has acted as a public official, a clear conflict of interest arises. Thus, we believe that this person may not, within the purview of the Ethics Act, participate on a matter where there is a reasonable belief that he may subsequently receive employment in relation to said matter. That is not to say that this councilman may not provide such service. The only requirement imposed by the Act is that his private interest not be in conflict with the public trust. Such a conflict or an appearance of a conflict may be avoided if the following guidelines are followed: John J. Brazil, Esq. June 24, 1985 Page 3 1. do not use the official position to obtain any business in a private capacity as a electrical contractor; 2. do not utilize confidential information gained through the official position as borough councilman; 3. refrain from participating in discussions, review, recommendations, and voting on matters which relate to clients that are or will be served as a private contractor which are presented to the borough for review and approval; 4. make public the past or intended relationship with such private clients in respect to any plans or recommendations that may come before the borough for review and approval; and 5. do not review or approve as borough councilman on behalf of the borough, any plans on which he or a business with which he is associated worked as a private contractor. Finally, reference is made to Section 3(b) of the Act, which provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We make note of this Section, not to imply that there has or will be any violation thereof but only to provide a complete response to your inquiry. Conclusion: As a Borough Councilman, this person is a public official within the purview of the State Ethics Act. Such an official may not participate in any matter presented to the borough council if this person has or intends to perform private electrical work in relation to the proposal. John J. Brazil, Esq. June 24, 1985 Page 4 Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Si ncerely, John J ontino Gene al Counsel