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HomeMy WebLinkAbout84-618 MorrisMr. Arthur E. Morris, Mayor City of Lancaster 120 North Duke Street P.O. Box 1559 Lancaster, PA 17603 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 4, 1984 RE: Official's Support, Business, Wife as Employee 84 -618 Dear Mayor Morris: This responds to your letter of September 19, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask, whether under the State Ethics Act, as Mayor of the City of Lancaster, you are prohibited from submitting a letter in support of a grant application of a business by which your wife is employed. Facts: You serve as the elected Mayor of the City of Lancaster. As Mayor, you have been approached by a Lancaster -based small business known as Target Color Technology, hereinafter, TCT, to lend your support as Mayor to a proposal that TCT has submitted to the National Science Foundation in Washington, D.C., for a Small Business Innovative Research Grant. This research grant, in the amount of approximately $39,000, would be utilized to fund further research in the new technology pioneered by TCT that controls light to produce color with colorimetric accuracy. Because TCT is a Lancaster -based business with the potential for growth you would, ordinarily, as Mayor, have no difficulty in lending your official support as Mayor to their grant request because obtaining this grant might enable TCT to further develop their technology, thereby benefitting the City of Lancaster through the development of new business and creation of new jobs. You would, ordinarily, as Mayor, be asked to and be willing to submit a letter to the National Science Foundation asking for favorable consideration for the TCT grant application. Mr. Arthur E. Morris, Mayor October 4, 1984 Page 2 However, you indicate that there is a "complicating factor" which has necessitated your request for advice from this Commission. Specifically, your wife, Linda is employed by TCT as a part -time bookkeeper. In this capacity, she works for TCT an average of 5 to 10 hours per week. Your concern is whether your lending your official support as Mayor to the TCT grant application would give rise as to any conflict or appearance of a conflict under the Ethics Act insofar as your action as Mayor might be construed as "using your public office" to obtain a "financial gain" for your wife. You note that continuation of your wife's part -time employment with TCT is not contingent upon whether or not you would give your official support to their grant request. We will also assume, for purposes of this advice, that your wife's status as an employee will not be altered or significantly approved in the sense of pay range or hours of employment if TCT were to obtain the grant they seek. Finally, you indicate that other than your wife's part -time employment with TCT, neither she nor you have any financial interest, direct or indirect, in TCT and neither you nor she have been offered nor will you receive any thing of value in exchange for your lending of support, as Mayor, to TCT's grant application. The National Science Foundation Program which will finally grant or deny this application is not under your influence or control and in addition, you have no influence or control over the award of the grant beyond whatever weight the Foundation may accord to your letter of support which you might write for TCT as Mayor of the City of Lancaster. You have reviewed this question with the City Solicitor's Office and you have been advised by the City Solicitor that in his opinion the continuation of your wife's existing part -time employment, which is unrelated as to whether or not you support the grant request, is not the type of "financial gain" contemplated or prohibited by Section 3(a) of the Ethics Act and that, therefore, you would not be prohibited from lending your support, as Mayor, to this grant request. However, as an elected official, with the highest regard for the public trust and confidence reposed in yourself, as Mayor, you do not wish to allow even the possibility of an appearance of a violation or conflict and cannot, in your opinion, proceed to lend your official support to the TCT - National Science Foundation Grant request without first seeking an official determination, from the State Ethics Commission, of whether your actions may be undertaken without violating the Ethics Act. Discussion: As Mayor of the City of Lancaster, you are, of course, an elected official who is clearly within the category of the definition of "public official" as set forth in the Ethics Act. See Section 2 of the Ethics Act, 65 P.S. 402. As such, your conduct must conform to the requirements of the State Ethics Act. With respect to the questions that you raised, we are required to review, in particular, Section 3(a) of the Ethics Act and Section 1 of the Ethics Act, 65 P.S. 403(a) and 401, respectively. In addition to these provisions of the Ethics Act, we must also review the definitions of the terms "immediate family" and "a business with which he is associated" as set forth in Section 2 of the Ethics Act, 65 P.S. 402. Mr. Arthur E. Morris, Mayor October 4, 1984 Page 3 After reviewing these definitions, it is clear that your wife is a member of your "immediate family" and that TCT is a "business" with which your wife is "associated" by virtue of her employment relationship with TCT. However, our inquiry cannot end here. We must proceed to answer the question of whether your proposed support of the TCT grant application will, in any respect, constitute the use of your public office to secure financial gain for your wife or for this business (TCT) with which your wife is associated as an employee. We must also question whether, if such support is undertaken, an appearance of a conflict or an actual conflict of interest with the public trust will arise. The Commission reviewed a similar question in the Steinman, 84 -006, case. In that case a County Commissioner asked us whether he could participate in the County's consideration and approval of an ordinance that would support the bond issue of a hospital where his wife was employed as a pharmacy clerk. In Steinman, the Commission found that the level of employment of the County Commissioner's wife as a pharmacy clerk was significant in that she would not be benefitted in any significant, individual or unique, manner by the County's approval of the bond issue. The Commission recognized that the County Commissioner's wife would be generally benefitted by the continued, commercially successful operation of the hospital and there would a remote, indirect, interest shared by the County Commissioner, through his wife, insofar as the hospital would continue in operation, in general. However, because the County Commissioner's wife would be affected nor more or less than any other hospital employee, under these circumstances and because she held the post of a pharmacy clerk which was not deemed to be a high -level position with the hospital and could not be expected to garner any significant, individual or personal benefit other than that shared by all employees of the hospital the Commission concluded that the County Commissioner was not required to recuse himself, with respect to the county's consideration and passage of the ordinance which would guarantee the hospital's bond issue. Given this precedent, and under the circumstances that you present, we similarly note the position that your wife holds with TCT and that she would not be benefitted in any significant, individual or unique manner, other than the benefit which would be derived by TCT and its employees, in general, should this grant application be approved. Under these circumstances, we find that your submission of a letter of support for this grant application would not be violative of Section 3(a) of the Ethics Act. Likewise, given the fact that there is no anticipated change in status as to the terms and conditions of your wife's employment with TCT or any promise of future employment or continuation of employment based upon your submission of a recommendation for approval of the TCT grant application, we can conclude that neither Section 3(a) or Section 3(b) of the Ethics Act would be implicated should you undertake this action as Mayor. We caution, however, that should there be any significant change in the status of your wife's employment with TCT as a Mr. Arthur E. Morris, Mayor October 4, 1984 Page 4 result of any approval of this grant application, we would request that you resubmit this information to us for further review. For example, should your wife be asked to do additional work or receive pay increments, which might be reasonably viewed as related to business secured or associated with this grant, you should ask us to further review this situation, should such circumstances arise. However, at present, under the facts as set forth above, there does not appear to be any reason why you, as Mayor, should not submit a recommendation for the approval of this TCT grant application. Conclusion: Under the circumstances and facts outlined above, you would not be in violation of the State Ethics Act should you, as Mayor, submit a recommendation or letter of support to the National Science Foundation asking for favorable consideration of the TCT grant application. 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: Louis J. Farina, Assistant City Solicitor Sincerely, Sandra S. Christianson s General Counsel