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HomeMy WebLinkAbout86-587 MolishRichard J. Molish, Esquire P.O. Box 2513, Suite 206A 600 Louis Drive Warminster, Pennsylvania 18974 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 24, 1986 ADVICE OF COUNSEL 86 -587 Re: Municipal Authority Member, Participation in Matter Relating to Private Employer Dear Mr. Molish: This responds to your letter of June 24, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a municipal authority member may participate in the authority's decisions relating to the member's private employer. Facts: As solicitor for the board of the Bucks County Airport Authority you have requested the advice of the State Ethics Commission in relation to Mr. Robert Natali, a member of the board. You advise that Mr. Natali is employed as a part -time flight instructor with Gull Aviation, Inc., hereinafter referred to as Gull. Gull renders commercial aviation services to the public, including the rental of aircraft, aviation flight and ground instructions, aircraft charter, aircraft taxi, aircraft maintenance and repairs, aviation supply sales, and aviation fuel sales. Gull conducts its commercial business enterprises on the facilities of the Doylestown and Quarkertown Airports. You advise that Gull has obtained it's right to operate at both of these airports pursuant to an assignment of lease dated April 17, 1986. The Bucks County Municipal Airport Authority was organized under the Pennsylvania Municipal Authorities Act of 1945. The authority owns both of the above airports and, pursuant to a written lease, allows Gull to operate at these facilities. You further indicate that Mr. Natali has stated that any payments which he receives for his services as a part -time flight instructor will be deposited by Gull directly into a separate bank account. These funds will thereafter he used, at his instructions, for the purpose of flight instruction scholarships. The receipients of these scholarships are to be selected by Gull. Richard J. Molish, Esquire July 24, 1986 Page 2 You have requested the advice of the State Ethics Commission as to whether Mr. Natali, under the above said facts, may participate in discussions pertaining to Gull and authority actions in relation thereto. You have further indicated that Mr. Natali has considered waving his compensation as an authority member if this will result in his exemption from the duties imposed by the State Ethics Act. Discussion: Initially, it should be noted that as a member of a municipal authority, serving on an authority created under the Municipal Authorities Act of 1945, you are clearly a public official as that term is defined in the State Ethics Act. This is so, even though you may not receive compensation for the services that you perform in that capacity. This Commission has recently determined that even non - compensated members of municipal authorities are public officials within the purview of the State Ethics Act. See Dice, 85 -021. The Commission's decision in this respect was occasioned by the Supreme Court's decision in Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981), wherein the court found that the definitional phrase "public official" was unconstitutional insofar as it purported to exempt from Ethics Act coverage appointed non - compensated officials. As a result of that particular court decision, this Commission determined that members of municipal authorities, even though appointed and non - compensated, are now covered by the provisions of the State Ethics Act. Therefore, in relation to the question of whether Mr. Natali may waive his authority compensation and, thereafter, be exempted from Ethics Act coverage, this Commission has determined that such waiver of compensation would not alleviate an authority member's duty to comply with the provisions of the Act. Therefore, as a public official within the purview of the Act, Mr. Natali must conform his conduct to the requirements thereof. 65 P.S. §401 et seq. Generally, the Ethics Act 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). The Act further provides: 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. Richard J. Molish, Esquire July 24, 1986 Page 3 As an employee of the Gull Company, Mr. Natali is clearly associated with that business, within the purview of the State Ethics Act. Therefore, within Section 3(a) of the State Ethics Act. Mr. Natali could not use his public position in order to obtain any financial gain for that company. Additionally, Mr. Natali could not use confidential information obtained through his public position for similar purposes. In relation to the parameters of this particular provision of law, this Commission has, on a number of occasions determined that in such situations, public officials may not participate, to any extent, in their governmental body's consideration and decisions relating to their private employer. See, Welz, 86 -001; Steinman, 84 -006; Sowers, 80 -050. Thus, as a result of the foregoing opinions and prior interpretations of the State Ethics Act, this Commission has uniformly held that a public official may not participate to any extent in a matter that relates to his private business or employer. This would include participating in preliminary discussions as well as participating in votes and final approvals relating to such matters. In relation to the issue presented by Mr. Natali's statement that he would have the funds received from his employment with Gull placed into a private escrow account to be utilized for scholarships, also would not change this result. The funds obtained would be his to direct and would be earned by him in his position of private employment. He would still be an employee of that company within the purview of the State Ethics Act. The fact that he would donate this fund to some ostensibly worth while cause would not negate the fact that he was still associated with this business within the purview of the State Ethics Act. See, Herman, 414 -R. Thus, Mr. Natali would still be associated with this company within the purview of the State Ethics Act and the restrictions contained in the Act would therefore require that he not use his public office, as a municipal authority member, to obtain any financial gain or benefit for the company with which he is associated, Gull, Incorporated. This same rationale would be applicable in light of other provisions of the Ethics Act, such as Section 403(d). That provision of the Act provides that the Commission may address other areas of possible conflict. 65 P.S. §403(d). Generally, the parameters of the types of activities encompassed by this provision of law are determined by reviewing the purpose and intent of the State Ethics Act as outlined in Section 1. That Section provides as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the Richard J. Molish, Esquire July 24, 1986 Page 4 people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Clearly, if Mr. Natali were to continuously participate in matters relating to the entity by which he is employed, an actual conflict at the present time would be created. Additionally, if Mr. Natali, at some future time could reasonably expect to have further associations with this particular company, then his constant participation in matters relating to them while on the municipal authority, could create additional conflict of interest questions. Thus, you are advised that Mr. Natali should continue to abstain from participating in matters relating to the company that employs him. Conclusion: A member of a municipal airport authority is a public official within the purview of the State Ethics Act. This individual may not participate in any of the authority's discussions, considerations, or decisions in relation to a private aviation company which employs that authority member on a part -time basis. This is so, even though the funds earned by that municipal authority member would be placed into a segregated fund which is used for scholarship purposes. 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. Si erely, ,1 29Z Sohn •. C. ino G eral Counsel