HomeMy WebLinkAbout86-539 PollackMr. Mark H. Pollock, Councilman
Room 510
City- County Ruilding
Pittsburgh, PA 15219
Dear Mr. Pollock:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 16, 1986
86 - 539
Re: Public Official, Participation in Matter Involving Former Private
Employer
This responds to your letter of March 25, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the State Ethics Act would place any restrictions upon your
participation, as a public official, in a matter that involved a company by
which you were formerly employed.
Facts: You advise that you currently serve as a member of the Pittsburgh City
Council. In your position on the council, you are Chairman of the Committee
on Housing, Planning and Development. Prior to your service as a City of
Pittsburgh Councilman you were employed by a private corporation, the Buncher
Company. You advise that this entity transacts business with the City of
Pittsburgh; although you did not advise the nature of that business. From
1974 til 1976 you were employed by this corporation in several different
capacities. You further advise that in 1985, prior to your term as a
councilman which began in January, 1986, you acted as a private attorney on
several matters for this corporation. You indicate that the nature of the
work performed was not ongoing but was rather in relation to two isolated
matters on which you were consulted. You advise that there is currently no
ongoing attorney /client relationship between you and the company. You have
not heen employed by this company as an attorney since you began your term in
office. You have now requested the advice of the State Ethics Commission as
to whether you may participate in city council's consideration, deliberation
and final disposition of matters which involve the Buncher Company.
Mr. Mark H. Pollock, Councilman
April 16, 1986
Page 2
Discussion: As an elected member of the Pittsburgh City Council you are
clearly a public official as that term is defined in the State Ethics Act. 65
P.S. §402. As such, your conduct must conform to the requirements of the
State Ethics Act. See Markham, 85 -013.
Generally, the State Ethics provides as follows:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Within the above provision of law, a public official may not use his public
position in order to obtain a financial gain for himself or for which a
business with which he is associated. The Act defines business with which one
i s associated as follows :
Section 2. Definitions.
"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 holder
of stock. 65 P.S. 402.
From the facts as indicated in your letter of request, while you were
clearly associated with the Buncher Corporation during 1976 and then again in
1985, at the current time there is no apparent association between you and
this particular company, therefore, Section 3(a) would present no restriction
insofar as you are not currently associated with this company. We do advise,
however, that if you are currently receiving any type of financial
remuneration from this company in the form of residual fees as a result of
your prior association with this company, then Section 3(a) would operate to
prevent you from participating in any matter that would result in this company
obtaining a financial gain through its dealings with the City of Pittsburgh.
Similarly, Section 3(a) would prevent you from using any confidential
information obtained in your position as a city councilmember to the financial
benefit of this corporation. Based upon the facts that you have supplied, it
appears as though there is no association at the current time between you and
the Buncher Corporation, therefore, Section 3(a) would not restrict your
activities as a city councilmember in relation to matters that come before the
council general ly.
Mr. Mark H. Pollock, Councilman
April 16, 1986
Page 3
In addition to the foregoing, the State Ethics Commission may address
other areas of possible conflict. 65 P.S. §403(d). Generally, such a
conflict would develop in situations where a public official is called upon to
serve interests that are adverse. See Alfano, 80 -007, Fritzi nger, 80 -008.
This Commission has reviewed a number of actions by public officials under
this provision of law and has generally determined that the actions of a
public official should not result in the development creation of a conflict of
interest. 65 P.S. §401. Thus, for example, if as a city councilperson you
are cal led upon to review particular situations involving this company i n
which you were involved as a private attorney or employee of that company, you
should abstain from participating in that matter. This is so because if you
were to participate in a matter in which you were involved specifically while
employed by the company, you would be called upon, in your public position, to
review, in part, actions which you performed as a private attorney or
employee. Thus, your objective review as a public official would be
questionable in that you would be called upon to review your own work. In
this respect, the interest which you are elected to serve, i.e. the public
interest and the public trust, would appear to conflict with your personal
interest. Thus, in such a situation you are advised that you should abstain
from participating, as a public official, in any matter in which you were
specifically involved as a private employee or attorney for the Buncher
Corporation. Also, it is advised that if such a situation should arise you
should make public note as to your abstention, the reasons therefor, and have
said abstention and reason appropriately recorded.
Finally, we note that the Ethics Act also provides as follows:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
We make note of the above provision of law, not to imply that there has
or will be any violation of this provision of the Act but merely to set forth
a complete response to your question. Substantial questions may arise under
the above provision of law under varying factual situations. Since you have
not supplied facts that indicate such a situation does exist, we offer this
Mr. Mark H. Pollock, Councilman
April 16, 1986
Page 4
particular advice only in order to give a complete response to the question
that you have posed and so that you are aware of the above provision of law.
In the event that such a situation does not exist, then your activities as a
city councilmember will only be restricted insofar as previously noted.
C. Conclusion: The Ethics Act places no per se prohibition upon your
participation in a matter that involves your former employer when you are not
currently associated to any extent with that employer. As a member of council
you should abstain from participating in any matter that comes before the city
council involving this company if you were involved in that matter as a
private employee or attorney for this corporation. Your abstention in such
matters should be publicly noted and recorded. Additionally, we have set
forth for your information the provisions of Section 403(b) of the State
Ethics Act in order to provide a complete response to your question.
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 i n 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.
Si nce
John J
Ge - al Counsel