HomeMy WebLinkAbout85-587 MohanJohn C. Mohan, Esquire
Mohan & Perich
234 Brownsville Rd.
Pittsburgh, PA 15210
Dear Mr. Mohan:
Ma hng Address
State Ethics Commission
308 Finance B u i l d i n g
P. 0. Box 11470
Harrisburg, Pa. 17108- 1470
October 2, 1985
Re: Borough Councilman, Partnership, Borough Solicitor
85 -587
This responds to your letter of September 19, 1985, wherein you
requested the advice of the State Ethics Commission.
Issue: Whether the law partner of a borough councilmember may be appointed as
the borough solicitor.
Facts: You have requested the advice of the State Ethics Commission on behalf
of a borough councilman and a potential solicitor for the borough. You
indicate that a member of the borough council is also a practicing attorney.
You also indicate that the position of borough solicitor is to be filled in
the near future and the law partner of the councilman is being considered for
the position.
You ask the following under the State Ethics Act:
1. Should councilman attorney vote on the appointment of his law
partner as solicitor?
2. Can councilman attorney's law partner serve in the capacity of
borough solicitor.
Discussion: It is noted, at the outset, that generally the State Ethics
Commission may not regulate the conduct of attorneys or the practice of law.
Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa.
Commw. 88, 434 A.2d 1327, (1981) affirmed 498 Pa. 589, 458 A.2d 613, (1982).
Additionally, part time municipal solicitors are not "public employees" within
the purview of the State Ethics Act. Ballou v. State Ethics Commission, 56
Pa. Commw. 240, 424 A.2d 983, (1981). _
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
John C. Mohan, Esquire
October 2, 1985
Page 2
The borough councilman, however, is a public official as that term is
defined in the State Ethics Act and his conduct, as a councilman, must conform
to the requirements thereof. 65 P.S. §402; Kilmer, 70 -037.
The Commission has addressed the issue presented herein on several
occasions. See Cantor, 82 -004; Fields, 82 -006.
In Fields, the Commission specifically set forth various guidelines in
relation to a borough councilman whose partner serves or hopes to serve as
borough solicitor. The Commission indicated that the sections of the Ethics
Act applicable in such a situation were 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).
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body 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. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
Section 1. Purpose.
The Legislature hereby declares that public office is a
public trust and that any effort to realize personal
financial gain through public office other than
compensation provided by law is a violation of that trust.
In order to strengthen the faith and confidence of the
people of the State in their government, the Legislature
further declares that the people have a right to be
assured that the financial interests of holders of or
John C. Mohan, Esquire
October 2, 1985
Page 3
candidates for public office present neither a conflict
nor the appearance of a conflict with the public trust.
Because public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 65 P.S. 401.
Law partners serving as borough councilmember and solicitor,
respectively, would not constitute a per se conflict of interest in violation
of the Ethics Act. In order to avoid even the appearance of a conflict of
interest, however, the councilman must abstain from borough council decisions
regarding the appointment or re- appointment of its solicitor as well as
actions pertaining to litigation activities which would increase fee payments
to the solicitor. Besides requiring such abstention from voting on this
matter, the Ethics Act would not preclude acceptance of the position.
Under the restrictions of Section 3(a), of course, the councilman could
not use his office or any confidential information obtained therefrom 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.
In addition, should the association with the solicitor be such that the
councilman would be a director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business, the requirements of
Section 3(c) of the Ethics Act would be applicable. Specifically, if the
solicitor and the councilman stood in such a relationship and if the borough
contracted with the solicitor in an amount over $500, the contract must be
awarded only after an open and public process.
In holding the "open and public" provisions of Section 3(c) of the Ethics
Act applicable to personal services contracts such as that between the
municipalilty and its solicitor, we realize that these contracts under the
circumstances described in Section 3(c) may have to be handled differently
from the usual requirements of the municipal code. Typically, municipal codes
exempt "personal" or "professional" services from their "bidding"
requirements. See Borough Code at 53 P.S. 46402(d)(5); City Codes, 53 P.S.
12671 (1st Class), 53 P.S. 23308.1 (2nd Class), and 53 P.S. 36901(d)(5) (3rd
Class); Incorporated Towns, 53 P.S. 53202(d)(5); and Township Codes, 53 P.S.
56802(d) (1st Class) and 53 P.S. 65802(e) (5)(2nd Class). However, the
purpose for these exceptions has generally been to free the municipality from
mandatory acceptance of the lowest "bidder." Commonwealth v. Tice, 272 Pa.
447 (1922). The purpose of this exception from "bidding" requirements is
manifestly different from the purpose of the Ethics Act in general and Section
3(c) of the Ethics Act in particular. See, Cantor, 82 -004.
John C. Mohan, Esquire
October 2, 1985
Page 4
The purpose of the Ethics Act, as expressed in Section 1 of the Ethics
Act, is to strengthen the faith of the public in their government. Section
3(c), in this case, requires an open and public process in the award of
contracts by a municipality to its own public employees /officials, their
wives, etc. It is obvious that adherence to the open /public process of
Section 3(c), if applied to personal /professional contracts, as well as to
contracts for goods, will help alleviate the fear that "insiders" (public
employees /officials, their wives and businesses) are "favored" in such
employment. Given the fact that the Legislature clearly demonstrated an
ability to write exceptions for personal /professional services contracts in
other codes and did not do so in the Ethics Act, we must conclude that
application of Section 3(c) to such contracts was intended by the
Legislature.
Applying Section 3(c) to such contracts effects the clear language of the
Ethics Act as well as implementing its purpose. In this interpretation and
application we do not imply or find a requirement in Section 3(c) that the
formal bid process with legal advertisements, etc. is required. Nor do we
find that the municipality, in such circumstances, would be obligated, after
the open /public process, to award the contract to the lowest "bidder."
Compare American Totalisator Co. v. Seligman, 27 Pa. Commw. 639 (1976). As
stated previously by this Commission, a 'reasonableness" test is to be applied
in dertermi ni ng whether the open /public requirements of Section 3(c) have been
met. Howard, 79 -044. Thus, before a public employee /official, his immediate
family or business as described in Section 3(c) is awarded a
personal /professional contract by the municipality he /she serves, there must
be:
(1) prior public notice of the contract possibility;
(2) sufficient time for a reasonable and prudent competitor to be able
to prepare and submit a proposal /application;
(3) public disclosure of all proposals /applications considered; and
(4) public disclosure of the contract awarded or offered /accepted.
Conclusion: The individuals involved herein, thus, will not violate the
Ethics Act by serving as councilman and solicitor respectively. The
councilman must abstain, however, from council decisions regarding appointment
or re- appointment and on matters pertaining to decisions which would increase
fee payments to the solicitor, as well as follow the other provisions of the
Act. If the councilman and the solicitor stand in a relationship as outlined
above, in this case, any contract in excess of $500 between the borough and
the solicitor must follow only after an open and public process.
John C. Mohan, Esquire
October 2, 1985
Page 5
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 oo service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfb
Si nc ply,
John J ntin
General Counsel