Loading...
HomeMy WebLinkAbout89-542 WardenRobert G. Werden 305 Summit Avenue Jenkintown, PA 19046 Dear Mr. Werden: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 22, 1989 Re: Conflict of Interest, Public Official, Borough, Councilmember, Employee of Borough Engineering Firm This responds to you letter of April 18, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act imposes any prohibition or restrictions upon a borough councilman from being employed on a part -time basis by the borough engineering firm which bought out the councilmember's engineering firm. Facts: You state that you are the Borough Councilman in Jenkintown Borough for 7 -1/2 years and that you are seeking election for a third term. You also note that you are Chairman of the Borough's Public Works Committee in addition to serving on Council. You then advise that the Borough's engineering firm is Pennoni Associates. You then state that your own engineering firm has been purchased by Pennoni Associates as a small division of their large company and that you will continue on the payroll as a part -time employee not to exceed 500 hours a year for a period of three years. You conclude by requesting advice from the Ethics Commission as to what restrictions the Ethics Act will imposed upon you as Borough Councilman regarding matters pertaining to the Borough engineer. Discussion: As a councilman for Jenkintown Borough you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. As such, you are subject to the provisions of the Ethics Act. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. 89 -542 Robert G. Werden May 22, 1989 Page 2 (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). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: Section 3(b) of the Ethics Act provides: (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. S403(b). Robert G. Werden May 22, 1989 Page 3 Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Paragraph Section 3(c) of the Ethics Act provides: Section 3(c) of the Ethics Act provides: (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). Under Section 3(c) quoted above, since you are neither a director, officer, owner, holder of stock exceeding 5% of the equity of Pennoni Associates, Section 3(c) of the Ethics Act would not have applicability to your situation. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. S403(d). Fritsinaer, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the Robert G. Werden May 22, 1989 Page 4 financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. S401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. Under Sections 3(a) and 3(d) of the Ethics Act quoted above, although you are not precluded from serving on Borough Council and also being a part -time employee of the Borough Engineering Firm, you should not participate in matters involving Pennoni Associates, as for example, the renewal of their appointment as Borough Engineer or questions regarding their retainer or matters relating to their payment or in any matters where there is dispute between Pennoni Associates and the Borough. In all these instances you must abstain and note your abstention of public record. Lastly, 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. Conclusion: As a Councilman for Borough of Jenkintown you are a public official subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act above, you may serve on Borough Council and as part -time employee of the Borough Engineering Firm but you must abstain and note publically your abstention in the matters noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Robert G. Werden May 22, 1989 Page 5 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 52.12. S3xcerely, Vincent . Dopko, General Counsel