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HomeMy WebLinkAbout89-601 AmatoMr. James D. Amato Law Offices Damian & Amato Three Gateway Center 15th Floor North Wing Pittsburgh, PA 15222 Dear Mr. Amato: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 89 -601 Re: Conflict, Mayor, Business, Liquor License, Bartender This responds to your letter of November 16, 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 mayor from also serving or being employed as a bartender of a licensed liquor establishment. Facts: You represent Mr. Michele Maruca who will be sworn in as Mayor of Leetsdale on January 1, 1990. Mr. Maruca is president and secretary of Giovanni, Inc. a Pennsylvania corporation which holds Liquor License No. TR -12435 for premises situate at 122 Broad Street, Leetsdale, Pennsylvania. Mr. Maruca proposes to transfer his interest in Giovanni, Inc. to his son, John Maruca and to appoint his wife Thomasina as manager to avoid a potential conflict under Section 4 -401 of the Liquor Code. However, Mr. Maruca is desirous of serving as a bartender at the licensed establishment and requests an opinion from the Commission as to the propriety of such conduct. Secondly, Mr. Maruca and his wife are the owners of Pennsylvania Liquor License No. R -2012 which has been escrowed since 1981. You inquire as to whether Mr. Maruca status as Mayor elect would present a conflict with Section 4 -401 of the Liquor Code under the second circumstance. Discussion: As a Mayor for Leetsdale, Mr. Maruca will become a "public official" as that term is defined in the Ethics Law and hence he will be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. Mr. James D. Amato Page 2 Initially, this advice will only address the propriety of Mr. Maruca's conduct under the Ethics Law but will not address such conduct under the Liquor Code in that the Ethics Commission does not have jurisdiction to interpret that latter law. In addition, your second inquiry will not be addressed in this advice in that it seeks a specific interpretation of the Liquor Code which is beyond the scope of the Ethics 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. 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. "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. "Business with which he is associated." Any business in which the person or a member Mr. James D. Amato Page 3 of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 provisions of the Ethics Law to the question you have posed, the general rule is that there is no per se prohibition upon a public official from having outside business activities provided they do not conflict with his public office. See Pancoe, Opinion 89 -011. Therefore, under the Ethics Law, Section 3(a) would not prohibit Mr. Maruca from the outside business activity of serving as a bartender at the premise in which Giovanni, Inc. owns a liquor license; however, Mr. Maruca could not use the authority of his office to obtain a private pecuniary benefit for himself or the business with which he is associated. Thus, he could not use the facilities, personnel, equipment or supplies of public office to conduct his private business activities. Pancoe, supra. In addition, if Mr. Maruca as Mayor elect has supervisory powers over the Leetsdale Police Department, he would have to remove himself from any matters that might arise concerning the premises at which Giovanni, Inc. has the liquor license and at which he would serve as bartender. In addition, Section 3(j) of the Ethics Law would require him to publically announce his conflict as well as disclose same in a written memorandum filed with the appropriate party who would record the minutes or maintain the records. The foregoing principles would have application if a situation would arise where Giovanni, Inc. would have a matter pending before the municipality. In that instance, Mr. Maruca could not participate nor could he vote to break tie votes of council, assuming that the position of Mayor in Leetsdale would be limited to voting in cases to break ties. 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 in this advice is the applicability of the Liquor Code or the applicable municipal code. Mr. James D. Amato Page 4 such. Conclusion: As the Mayor of Leetsdale, Mr. Maruca will be a "public official" subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit Mr. Maruca as Mayor from engaging in the business activity of a bartender, Mr. Maruca must observe the restrictions as noted above and comply with the disclosure requirements of Section 3(j) of the Ethics Law. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed is either the applicability of the Liquor Code or municipal code. 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 S2.12. Vincent J. Dopko, Chief Counsel