HomeMy WebLinkAbout17-560 SmithSTATE THIC COMMISSION
3 09 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -€300- 932 -0936
ADVICE OF COUNSEL
August 22, 2017
To the Requester:
Mr. J. David Smith, Esquire
McCormick Law Firm
Dear Mr. Smith:
17 -560
This responds to your letter dated July 21, 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
Pa-TS. § 1101 et seq., would impose prohibitions or restrictions upon a County
Commissioner f&F Lycoming County ("County"), Pennsylvania, with regard to
participating in the County's decision - making process for selecting the successful
respondent to a County Request for Proposals ( "RFP ") to provide professional services
in connection with the operation of a court- affiliated, County- funded day treatment
program, where: (1) the County Commissioner is a Member of the Board of Directors of
a non - profit corporation named "Firetree Place";) Firetree Place was created with the
assistance of a non- profit corporation named "FFiretree, Ltd. "; (3) Firetree Place and
Firetree, Ltd. are separate entities with separate boards of directors, staff, addresses,
and missions; (4) Firetree Place did not participate in the County's RFP process with
regard to the aforesaid professional services; and (5) Firetree, Ltd. is one of various
entities that submitted responses to the County RFP.
Facts: You request an advisory from the Commission on behalf of Rick Mirabito
rabito "), who is a County Commissioner. You have submitted facts that may be
7 as follows.
In a private capacity., Mr. Mirabito is a Member of the Board of Directors of a non-
profit corporation named Firetree Place," which operates a- community center focused
on serving the needs of local youth. Firetree Place was created with the assistance of a
non - profit corporation named "Firetree, Ltd.," which provides transactional services to
individuals within the criminal justice system. You state that Firetree Place and Firetree,
Ltd. are separate entities with separate boards of directors, staff, addresses, and
missions.
A court- affiliated, County - funded day treatment program (the "Darr Treatment
Program ") was initiated a few years ago and has been operated since its inception by
an entity known as GEO Services. GEO Services is an entity separate and distinct from
Firetree Place and Firetree, Ltd.
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa . us 0 e -mail: ethics9state.pa.us
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STATE THIC COMMISSION
3 09 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -€300- 932 -0936
ADVICE OF COUNSEL
August 22, 2017
To the Requester:
Mr. J. David Smith, Esquire
McCormick Law Firm
Dear Mr. Smith:
17 -560
This responds to your letter dated July 21, 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
Pa-TS. § 1101 et seq., would impose prohibitions or restrictions upon a County
Commissioner f&F Lycoming County ("County"), Pennsylvania, with regard to
participating in the County's decision - making process for selecting the successful
respondent to a County Request for Proposals ( "RFP ") to provide professional services
in connection with the operation of a court- affiliated, County- funded day treatment
program, where: (1) the County Commissioner is a Member of the Board of Directors of
a non - profit corporation named "Firetree Place";) Firetree Place was created with the
assistance of a non- profit corporation named "FFiretree, Ltd. "; (3) Firetree Place and
Firetree, Ltd. are separate entities with separate boards of directors, staff, addresses,
and missions; (4) Firetree Place did not participate in the County's RFP process with
regard to the aforesaid professional services; and (5) Firetree, Ltd. is one of various
entities that submitted responses to the County RFP.
Facts: You request an advisory from the Commission on behalf of Rick Mirabito
rabito "), who is a County Commissioner. You have submitted facts that may be
7 as follows.
In a private capacity., Mr. Mirabito is a Member of the Board of Directors of a non-
profit corporation named Firetree Place," which operates a- community center focused
on serving the needs of local youth. Firetree Place was created with the assistance of a
non - profit corporation named "Firetree, Ltd.," which provides transactional services to
individuals within the criminal justice system. You state that Firetree Place and Firetree,
Ltd. are separate entities with separate boards of directors, staff, addresses, and
missions.
A court- affiliated, County - funded day treatment program (the "Darr Treatment
Program ") was initiated a few years ago and has been operated since its inception by
an entity known as GEO Services. GEO Services is an entity separate and distinct from
Firetree Place and Firetree, Ltd.
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa . us 0 e -mail: ethics9state.pa.us
Smith, 17 -560
ugust 22, 2017
Page 2
When the County issued an RFP to provide professional services in connection
with the operation of the Day Treatment Program, various entities, including Firetree,
Ltd. and GEO Services, submitted responses to the County RFP. Firetree Place did not
participate in the County's RFP process with regard to the aforesaid professional
services.
Based upon the above submitted facts, you pose the following questions
(1) Whether the Ethics Act would permit Mr. Mirabito to participate in the
County's decision - making process for selecting the successful respondent
to the Count RFP to provide professional services in connection with the
operation of the Day Treatment Program; and
(2) Whether there is some legally improper appearance of impropriety that
would arise if Mr. Mirabito would participate in the aforesaid decision -
making process.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the 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 opinion/advice 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 County Commissioner, Mr. Mirabito is 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 if 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
Smith, 17 -560
August 22, 2017
Page 3
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
pprovided 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 two 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).
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.
"Business. " Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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 office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public officiallpublic 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
Smith, 17 -560
August 22, 2017
Page 4
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
co�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.
In ap tying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Firetree Place is a business with which Mr. Mirabito is associated in his capacity
as a Director. Subject to the statutory exclusions to the definition of "conflict" or "conflict
of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a of the Ethics Act, Mr. Mirabito would have a conflict of interest in his
capacity as a County Commissioner in matters that would financially impact him or a
business with which he is associated, such as Firetree Place.
Under the submitted facts, Firetree, Ltd. is not a business with which Mr. Mirabito
is associated. Therefore, Mr. Mirabito would not have a conflict of interest in his
capacity as a County Commissioner in matters that would financially impact Firetree,
Ltd. but that would not financially impact him, a member of his immediate family, or a
business with which he or a member of his immediate family is associated, such as
Firetree Place.
You are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to Mr. Mirabito, a member of his immediate family, or a business with
which he or a member of his immediate family is associated, Mr. Mirabito would not
have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a
County Commissioner with regard to participating in the County's decision- making
process for selecting the successful respondent to the County RFP to provide
professional services in connection with the operation of the Day Treatment Program.
You are further advised that an appearance of impropriety would not be sufficient
to establish a violation of the Ethics Act.
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. Specifically not addressed herein is the applicability of
the County Code.
Conclusion: Based upon the submitted facts that: (1) Rick Mirabito ( "Mr.
ira i o , is a County Commissioner for Lycoming County ( "County "), Pennsylvania; (2)
in a private capacity, Mr. Mirabito is a Member of the Board of Directors of a non - profit
corporation named "Firetree Place," which operates a community center focused on
serving the needs of local youth; (3) Firetree Place was created with the assistance of a
non - profit corporation named "Firetree, Ltd.," which provides transactional services to
individuals within the criminal justice system; (4) Firetree Place and Firetree, Ltd. are
separate entities with separate boards of directors, staff, addresses, and missions; (5) a
court - affiliated, County - funded day treatment program (the "Day Treatment Program ")
was initiated a few years a o and has been operated since its inception by an entity
known as GEO Services; (6) GEO Services is an entity separate and distinct from
Firetree Place and Firetree, Ltd.; (7) when the County issued a Request for Proposals
( "RFP ") to provide professional services in connection with the operation of the Day
Treatment Program, various entities, including Firetree, Ltd. and GEO Services,
submitted responses to the County RFP; and (8) Firetree Place did not participate in the
County's RFP process with regard to the aforesaid professional services, you are
advised as follows.
Smith, 17 -560
ust 22, 2017
Page 5
As a County Commissioner, Mr. Mirabito is a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et sec.. Firetree Place is a business with which Mr. Mirabito is associated in his
capacity as a Director. Subject to the statutory exclusions to the definition of "conflict"
or "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, Mr. Mirabito would have a conflict of
interest in his capacity as a County Commissioner in matters that would financially
impact him or a business with which he is associated, such as Firetree Place.
Under the submitted facts, Firetree, Ltd. is not a business with which Mr. Mirabito
is associated. Therefore, Mr. Mirabito would not have a conflict of interest in his
capacity as a County Commissioner in matters that would financially impact Firetree,
Ltd. but that would not financially impact him, a member of his immediate family, or a
business with which he or a member of his immediate family is associated, such as
Firetree Place.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Mr. Mirabito, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Mr. Mirabito would not have a conflict of
interest under Section 1103(a) of the Ethics Act in his capacity as a County
Commissioner with regard to participating in the County's decision - making process for
selecting the successful respondent to the County RFP to provide professional services
in connection with the operation of the Day Treatment Program. Lastly, the propriety of
the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) 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.
Any such appeal must be in writingg and must be actually
received at the Commission within thirty (30) days of the date otthi
Advice pursuant to 51 Pa. Code § 93.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Since ly,
Robin . Hi ttieh�
Chief Counsel