HomeMy WebLinkAbout17-552 CocuzzaSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17198 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
August 4, 2017
To the Requester:
Mr. James M. Cocuzza
Dear Mr. Cocuzza:
17 -552
This responds to your letter received .tune 30, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P_a.U_S. § 1101 et se q., would impose prohibitions or restrictions upon an individual
serving as a meni r of a regional police commission, who also serves as the trustee of
a pension fund overseen by the regional police commission, with regard to placing
some of his private investments under the management of the firm that manages the
pension fund.
Facts: You request an advisory from the Commission based upon submitted
fi chat may be fairly summarized as follows.
You are a Member of the Central Berks Regional Police Commission ( "Regional
Police Commission "). You are also the trustee ( "Trustee ") of a pension fund (the
"Pension Fund ") overseen by the Regional Police Commission.
In 2016, the bargaining unit (the "Bargaining nit ") associated with the Pension
Fund asked you, in your capacity as the Trustee oT the Pension Fund, to seek another
firm to manage the Pension Fund due to a lack of satisfactory performance by the firm
that was managing the Pension Fund at that time. You reviewed six proposals that
were submitted following a public request for proposals, and you made your
recommendations to the Bargaining Unit and the Regional Police Commission. Upon
agreement, a new firm (the "Firm") was chosen to manage the Pension Fund. You state
that the performance of the Pension Fund has improved markedly under the
management of the Firm.
The Firm handles funds through some of the same accounts in which you have
private investments that you inherited. You have never actively, managed your inherited
private investments, and they are not your primary source of investments or income.
You are considering placing your inherited private investments under the management
of the Firm.
FAX: (717) 787 -0806 a Web Site: www.ethics state.pa.us 0 e -mail: ethics(g�state.pa.us
Cocuzza, 17 -552
August 4, 2017
Page 2
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any rohibitions or restrictions upon you with regard to placing your inherited
private investments under the management of the Firm.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinionladvice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As a Member of the Regional Police Commission and as the Trustee of the
Pension Fund, you are a public official subject to the provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict.- -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three- member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining wo members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
Cocuzza, 17 -552
August 4, 2017
Page 3
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. 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. The term 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 of 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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public officelemployment or confidential
information received b holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferrin' with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
coffin 'ict, Section 11030) of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c),
provide in part that no person shall offer or give to a public official/public employee
anything of monetary value and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgment of the public official/public employee would be influenced thereby.
Having established the above general principles, you are advised as follows.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics
Act would impose restrictions upon you in your capacities as a public official, rather than
upon you in your private capacity. Therefore, Section 1103(a) would not prohibit you
from acting in your private capacity to place your inherited private investments under the
management of the Firm.
Cocuzza, 17 -552
August 4, 2017
Page 4
You are further advised that absent a private pecuniary benefit contrary to
Section 1103(a) of the Ethics Act or an improper understanding contrary to Section
1103(b) /Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit you in your
public capacity(ies) as a Member of the Regional Police Commission and/or the Trustee
of the Pension Fund from participating in matter(s) pertaining to the Firm.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; 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: Based upon the submitted facts that: (1) ou are a Member of the
Central F�er' RegTOnal Police Commission ("Regional Police Commission "); (2) you are
also the trustee "Trustee ") of a pension fund (the "Pension Fund ") overseen by the
Regional Police Commission; (3) in 2016, the bargaining unit (the "Bargaining Unit ")
associated with the Pension Fund asked you, in your capacity as the Trustee of the
Pension Fund, to seek another firm to manage the Pension Fund due to a lack of
satisfactory performance by the firm that was managing the Pension Fund at that time;
(4) you reviewed six proposals that were submitted following a public request for
proposals, and you made your recommendations to the Bargaining Unit and the
Regional Police Commission; (5) upon agreement, a new firm (the "Firm ") was chosen
to manage the Pension Fund; () the performance of the Pension Fund has improved
markedly under the management of the Firm; (7) the Firm handles funds through some
of the same accounts in which you have private investments that you inherited; (8) you
have never actively managed your inherited private investments, and they are not your
primary source of investments or income; and (9) you are considering placing your
inherited private investments under the management of the Firm, you are advised as
follows.
As a Member of the Regional Police Commission and as the Trustee of the
Pension Fund, you are a public official subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. Section 1103(a) of the
Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and
public employees: Section 1103(a) of the Ethics Act would impose restrictions upon
you in your capacities as a public official, rather than upon you in your private capacity.
Therefore, Section 1103(a) would not prohibit you from acting to your private capacity o
place your inherited private investments under the management of the Firm.
Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act
or an improper understanding contrary to Section 1103(b)ISection 1103(c) of the Ethics
Act, the Ethics Act would not prohibit you in your public capacity(ies) as a Member of
the Regional Police Commission and/or the Trustee of the Pension Fund from
participating in matter(s) pertaining to the Firm. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(l 1) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Cocuzza, 17 -552
August 4, 2017
Page 5
Any such appeal must be in writingg and must be act --mil -1
received at the Commission within thirty (30) days of the date o is
Advice - pursuant to 51 Pa. Code § f3.2(h). The appeal may be
received at the Commission by hand deliverryy, United States mail,
delivery service, or by FAX transmission (717787 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
~ "*� -1
Robin M. Hittie
Chief Counsel