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HomeMy WebLinkAbout89-583 HolsingerSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Mr. Alan Holsinger Law Offices Holsinger, Clark and Armstrong First Federal Building 935 Philadelphia Street Indiana, PA 15701 ADVICE OF COUNSEL January 5, 1990 89 -583 Re: Conflict, Solicitor, Township, Supervisor, Entertainment, Luncheon Dear Mr. Holsinger: This responds to your letter of October 6, 1989 in which you requested advice from the State Ethics Commission. Issue: What restrictions the Public Official and Employee Ethics Law imposes upon a solicitor of a township from entertaining the township supervisors and employees at a Christmas luncheon. Facts: You have been the solicitor for White Township, Indiana County, Pennsylvania for over twenty -five years. At the time of your original appointment, the secretary /treasurer had established a policy of inviting the supervisors and employees to a luncheon at Christmas time. After the death of the secretary /treasurer, you have continued the practice by entertaining the supervisors and employees with a lunch at Christmas time. The lunch is for five supervisors and thirteen township employees and costs approximately $100. You do not believe that such action constitutes a conflict of interest under the Ethics Law, but have a concern as to the interpretation of that section with respect to continuing the practice. In particular you request an opinion as to whether the proposed activity would be considered restricted by the Ethics Act or would be permissible on the basis of a de minimus economic impact. Discussion: As the solicitor for White township, you are a public employee as that term is defined under the Ethics Law and Mr. Alan Holsinger Page 2 hence are subject to the provisions of the Ethics Law. 65 P.S. S402; SAataro, Opinion 89 -009. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Laws Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Mr. Alan Holsinger Page 3 In applying the above provisions of the Ethics Law to the instant matter, we are guided by the decision of the Commission in Confidential Opinion, 89 -029 which addressed the question of whether a school district solicitor could utilize the private services of the school board member to perform painting services for the solicitor. The Commission concluded that Section 3(a) was not applicable in that situation because the solicitor was not using the authority of office relative to the giving the painting contracts to the school board member. However, the Commission cited Sections 3(b) and 3(c) of the Ethics Law and expressly limited its decision based upon the assumption that there was no understanding between the solicitor and school board member regarding the painting contracts and his retention as school solicitor. In applying the Confidential Opinion, 89 -029 to this case, Section 3(a) of the Ethics Law would not restrict you from entertaining the supervisors and township employees to a Christmas luncheon. In that case, you would be making a gift to the supervisors and township employees to the extent of the cost of the lunch. The Ethics Law would not prohibit you from making these gifts. See Gioliotti, Opinion 89 -020. As to Sections 3(b) and 3(c) of the Ethics Law referenced above, it is expressly assumed for purposes of this advice that no understanding exists as to your entertaining these people, in particular the supervisors, to a Christmas luncheon vis a vis your retention as solicitor. Confidential Opinion, 89 -029, supra. Finally, you should be aware that Section 4(a) of the current Ethics Law requires that persons who are full -time or part -time solicitors for political subdivisions are required to file the Statement of Financial Interests. Act 9 of 1989. Therefore, on or before May 1, 1990, you are required to file a Statement of Financial Interests for the 1989 year and for every year thereafter that you serve in the position of solicitor. Powell, Opinion 89 -025. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 solicitor for White Township you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you as township solicitor from entertaining the supervisors and employees to a Christmas luncheon. Section 4(a) of the Ethics Law requires Mr. Alan Holsinger Page 4 such. solicitors to file Financial Interests Statements on or before May 1, 1990 for the proceeding year 1989 and for every year thereafter for which they serve. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko, Chief Counsel