HomeMy WebLinkAbout84-552 OpsitnickAllan J. Opsitnick, Esquire
Hickton & Opsitnick
527 Second Avenue
Pittsburgh, PA 15219
Dear Mr. Opsitnick:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
April 24, 1984
ADVICE OF COUNSEL
RE: Verona Borough, Solicitorship, Section 3(c)
84 -552
This responds to your letter of April 12, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether and under what circumstances you, as an attorney, may
seek and secure appointment as solicitor in a municipality in which your
spouse serves as a public official.
Facts: You indicate that your wife, Cathy, currently serves as President of
the Borough Council in Verona Borough, hereinafter, the Borough. You also
engage in the practice of law and this practice involves a considerable amount
of municipal work.
Recently, the solicitor for the Borough, Nicholas R. Stone, died and the
Borough must appoint a permanent solicitor. You wish to apply for appointment
as the Borough solicitor. You indicate that prior to Mr. Stone's death, the
Borough Council was in the process of selecting an solicitor and had received
three resumes for that position. However, since Mr. Stone's death, additional
inquiries and resumes have been received by the Borough. You indicate that
these inquiries have arisen as a result of information passed by "word of
mouth" within the legal community and through the appearance of Mr. Stone's
obituary in the Pittsburgh Press and Pittsburgh Post Gazette as well as in the
Pittsburgh Legal Journal, which indicated that he had served as solicitor for
the Borough.
Allan J. Opsitnick, Esquire
April 24, 1984
Page 2
In addition, at Borough Council's regular meeting of April 10, 1984, it
was stated that resumes from attorneys who wished to be considered for
appointment as solicitor would be accepted until late April, 1984. The
Council indicated that a selection and interviewing process would be
undertaken after which the solicitor would be appointed the regular meeting
scheduled for May 8 or at a special meeting to be held later in May, if
needed. Also, after the April 10, 1984 meeting of Borough Council, your wife
contacted the "East Suburban" desks of both the Pittsburgh Press and the
Pittsburgh Post Gazette and informed them that the Borough was seeking a
solicitor. The Pittsburgh Post Gazette in its "East Edition" of April 12,.
1984, published an article regarding the vacancy in the post of solicitor for
the Borough and indicated that persons interested in this position shall
submit applications for appointment to the Borough Council before the end of
April, 1984. During the April 10, 1984 meeting at which the announcement
regarding the solicitor vacancy was made, the Advance Leader (the Verona
area's weekly newspaper) and the Valley Dispatch (a daily paper in the
Allegheny Valley) had reporters in attendance.
Finally, you indicate that you understand that your spouse would have to
abstain from voting on the appointment of the solicitor as well as any votes
regarding the compensation of the solicitor. You also indicate that you
intend to submit a letter of application and a resume to the Borough seeking
to secure appointment to this solicitorship.
Discussion: As an elected member of the Borough Council, you wife, Cathy, is
a "public official" whose conduct must conform to the requirements of the
State Ethics Act. The State Ethics Act indicates that no public official or
public employee may use his or her public office or confidential information
received through his or her holding of public office to obtain financial gain
from him or herself or a member of his or her immediate family. In this
instance you would be considered a member of your spouse's "immediate family"
as that term is defined in the State Ethics Act, 65 P.S. 402. Thus, your wife
could not use her post on Borough Council or confidential information which
she would secure in such a post to secure for you appointment as solicitor,
for example. The restrictions which you indicate will be observed, that is
your wife will abstain from the Council's decision with respect to the
appointment of the solicitor and the compensation for that post, are proper
and required under the State Ethics Act.
In addition, the requirements of Section 3(c) of the State Ethics Act
must he observed. Section 3(c) of the Ethics Act states that:
Allan J. Opsitnick, Esquire
April 24, 1984
Page 3
(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).
The Commission has decided that the concepts contained in Section 3(c)
can be applied to the situation where a Borough Council member who is also an
attorney has a law partner who seeks to apply for and be appointed as
solicitor for the Borough for which the Council member - partner serves. See
Fields, 82 -006. In your case, the requirements of Section 3(c) of the Ethics
Act would be equally applicable. An open and public process would be required
insofar as your application to be appointed as solicitor would be concerned.
The question, however, arises as to what the open and public process
requirements of Section 3(c) demand. The Commission addressed this question
in its opinion in Howard, 79 -044 as well as in its opinion in Fields, supra.
In these opinions, the Commission indicated that the requirements of Section
3(c) would be met so long as in a contract between an official, a member of
his or her immediate family and the municipality in which the official serves
there was:
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 or application;
3. public disclosure of all proposals or applications considered; and
4. public disclosure of the contract awarded or offer accepted.
Applying these concepts to the circumstances and actions which have
already been taken by the Borough, we conclude that the solicitation for
applications process•which has already been undertaken, is sufficient to meet
the first two criteria outlined above. Your wife should he alert to
fulfilling Nos. 3 and 4 outlined above, in order to complete compliance with
the requirements of Section 3(c) of the Ethics Act.
Allan J. Opsitnick, Esquire
April 24, 1984
Page 4
Conclusion: There is no violation of the State Ethics Act for you to solicit
appointment as and serve as solicitor in the same Borough where your wife
serves as a Council member. Your wife, however, must abstain from Council's
decisions and deliberations regarding its appointment or re- appointment of a
person to serve as solicitor and should abstain in a similar manner as to
matters pertaining to decisions which would relate to the compensation of the
solicitor, if you are to be successful in seeking this post. The open and
public process requirements of the Ethics Act must be met and the.process
outlined above that has already been undertaken by the Borough are sufficient
to initiate compliance with these requirements. Your wife, should insure that
items Nos. 3 and 4 outlined above, are fulfilled as well.
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.
SSC /rdp
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 of service of this Advice pursuant
to 51 Pa. Code 2.12.
Sincerely,
r
ndra S Chr stianson
General Counsel