HomeMy WebLinkAbout89-593 McFallDear McFall:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNCIL
December 14, 1989
Mr. Alan B. McFall
Law Offices
Cassebaum, McFall & Molnar, P.C.
134 Broadway
P.O. Box 147
Bangor, PA 18013
89 -593
Re: Conflict, Municipal Authority, Sewer Administrator,
Immediate Family, Employment by Authority, Son.
This responds to your letter of November 1, 1989, in
which you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
imposes any prohibition or restrictions upon a municipal
authority board member regarding the employment of his son as
the sewage administrator who would work out of his private
office to conduct authority business.
Facts: As solicitor of the Wind Gap Municipal Authority and
on behalf of authority member Richard Guarry, Sr. and board
chairman Paul Trilli, you seek an advisory opinion regarding
the proposed employment of Mr. Guarry's son, Richard Guarry,
Jr. as sewer administrator for the authority. The Wind Gap
Municipal Authority renders sewer service within the Borough
of Wind Gap and a portion of Plainfield Township. The
current sewage administrator has duties of manning the
authority's business office twenty hours per week, accepting
sewage service applications, issuing sewage permits,
maintaining billing and sewer service payment records, paying
the authority's bills, taking minutes of meetings, and
preparing payroll checks for authority employees. At the
present time the authority uses the office space jointly
shared with the Wind Gap Borough in the municipal building.
The current sewage business administrator who is also
employed as borough secretary has given notice that she plans
to resign both positions so as to devote her time to a
private business enterprise. Due to the space constraints in
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Page 2
the municipal building, the authority board has been
considering rendering space in a separate building and has
advertised in two local papers for applicants for the
position of sewage business administrator. Although the
authority did not advertise for a sewage administrator who
would also provide office space to conduct authority
business, one of the applicants, Richard Guarry Jr., son of
the current authority board member, who operates a public
accounting practice in Wind Gap in a building jointly owned
with his father, has proposed a flat fee of $19,200 per year
to undertake the responsibilities of sewage enforcement
administrator which would include doing the work in his
existing accounting offices. Mr. Guarry, Jr. has proposed
that his offices would be open to the public for the conduct
of authority business at least forty hours per week during
normal operating hours of his accounting practice without any
separate charge for the business office space that would be
utilized for authority business. Although Richard Guarry,
Jr. father is a full -time employee with Mack Trucks, he does
some part -time work in his son's accounting practice,
apparently without receiving any compensation for the work.
After noting that Richard Guarry, Sr. as board member would
be prepared to abstain from voting on the proposed employment
contract between his son and the authority, you seek an
expedited ruling due to the impending resignation of the
present sewage administrator.
Discussion: As a board member for Wind Gap Municipal
Authority, Mr. Guarry, Sr. is a "public official" as that
term is defined in the Ethics Law and hence he is subject to
the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code
§1.1.
Law:
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.
It is further provided in Section 3(f) of the Ethics
Section 3. Restricted activities.
(f) 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
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Page 3
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.
The following terms are defined under the Ethics Law:
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.
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Page 4
"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.
"Immediate family." A parent,
spouse, child, brother or sister.
"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. "Contract"
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.
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 and no public
official /employee shall solicit or accept any thing of
monetary value based upon the understanding that
official /employee would be influenced thereby.
In applying the above provisions of the Ethics Law to
the instant matter, it is clear that Richard Guarry, Jr., as
the son of board member Richard Guarry, Sr., is a member of
his immediate family as that term is defined under the Ethics
Law. In light of the above, Mr. Guarry, Sr. would be
prohibited from voting on the employment contract as to his
son since Section 3(a) of the Ethics Law prohibits a public
official from using the authority of his office or
confidential information to obtain a private pecuniary
benefit for himself or a member of his immediate family. In
this case the private pecuniary benefit is the contract to do
the sewage administrative work; hence, Mr. Guarry, Sr. must
not vote or participate as to that employment contract as
well as any other matter involving the performance of the
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Page 5
sewage business administrator. Section 3(j) of the Ethics
Law would require him to publically announce and disclose the
nature of his conflict in a written memorandum filed with the
secretary recording the minutes for the municipal authority.
A public official /employee or member of his immediate
family must comply with the provisions of Section 3(f) of the
Ethics Law if he seeks to contract with the public official's
governmental body. Thus, for contracts of $500 or more,
Section 3(f) requires an open and public process including
prior public notice and subsequent public disclosure.
Further, if the contract is awarded, the public official may
not have any supervisory or responsibility as to the
implementation or administration of the contract.
In this case, the original advertising was limited to
employment only without any consideration for office space.
If the authority board is interested in such an arrangement,
it will be necessary under Section 3(f) to re- advertise for
bids that would supply the service as well as facilities.
Once the bids are submitted and a decision is made,
subsequent public disclosure would also be required. In the
event that Richard Guarry, Jr. is selected, Richard Guarry,
Sr. could not have any supervisory or overall responsibility
as to the contract pursuant to Section 3(f).
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.
Specifically not addressed is the applicability of the
Municipalities Authorities Act. In addition, this advice is
limited in its applicability to the conduct of municipal
authority board member Richard Guarry, Sr.
Conclusion: As a municipal authority board member, Richard
Guarry, Sr. is a public official subject to the provisions of
the Ethics Law. Section 3(a) of the Ethics Law would
prohibit Richard Guarry, Sr. from voting or participating
upon an employment contract with his son for the position of
sewage business administrator for the authority. Section
3(j) of the Ethics Law would require Mr. Guarry, Sr. to
publically announce and disclose his conflict in a written
memorandum filed with the secretary recording the minutes of
the authority. In addition, Section 3(f) would require that
the employment contract be an open and public process
including prior public notice and subsequent public
disclosure. Under Section 3(f) Richard Guarry, Sr. could not
have any supervisory or overall responsibility as to the
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Page 6
contract. 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 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 in
writing and must be received at the Commission within 15 days
of the date of this Advice pursuant to 51 Pa. Code §2.12.
Vincent J. Dopko,
Chief Counsel