HomeMy WebLinkAbout86-627 Mascara•
November 1R, 1QR6
An \ICE nF COUNSEL
Mr. Frank R. Mascara
County of Washington
Courthouse Square, Room 702
Washington, PA 15301
Mailing Address:
STATE ETHICS COMMISSION
P.G. Box 11470
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
Re: County Commissioner, Private Business Interest
near Mr. Mascara:
86 -627
This respond3 to your letter of October 29, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether the St(,te Ethics Act presents any prohibition upon a public
official's interest in private business entities.
Facts: You advise that you currently serve as the chairman of the Washington
County Roard of Commissioners in Washington County, Pennsylvania. You are
currently considering initiating a husiness venture that would require contact
with various governmental units. You advise that this contact would not
include Washington County where you presently serve as a member of the heard
of commissioners. You advise that the nature of your involvement, at this
time, is not clear. In this respect, you are not sure as to whether you will
serve as an employee, partner, stockholder, consultant, or in some other
position. The types of services rendered by this firm would include,
accounting, insurance, industrial appraisals, reassessment programs, airport
planning and human services programs. You have requested the advice of the
State Ethics Commission as to whether an association, as outlined above, would
he prohibited within the purview of the State Ethics Act.
niscussion: At the outset, it should he noted that in light of the lack of
specifics provided in your letter of request, this advice can only outline for
you the general parameters of the State Ethics Act. In the event that more
specifics are obtained regarding your future involvement with this business
venture and the "governmental unit3" with which you will he contracting, the
further advice of this Commission may he requsted.
State Ethics Commission • 303 Finance Building u Harrisburg, Pennsylvania
Mr. Frank B. Mascara
November 18, 1986
Page 2
Initially, we note, that as a county commissioner 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 that law.
Generally, the State Ethics provides as follows:
Section 3. Restricted activities.
(a) to 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).
Withi, the above provision of law, you may not use your office or your
positi o►/ as a county official in order to obtain any financial gain for the
business; .pith which you are associated. Similarly, you may not use any
confidential information obtained through your public position for similar
purposes. Ir this respect, you may not participate or otherwise be involved
in a matter, at the county level or as a county official, which relates to
your private business interest. In addition to the foregoing, the State
Ethics Act 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).
Reference is made to the above provision of law not to imply that there
has or will be any implication thereof but merely to provide a complete
response to the question that you have posed. The State Ethics Act also
provides as follows:
Mr. Frank B. Mascara
November 18, 1986
Page 3
Section 3. Restricted activities.
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
di rector, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body unless the contract has been awarded
through an open and public process, including prior public
notice and subsequent public disclosure of all proposals
considered and contracts awarded. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
Depending upon your relationship to the business entity identified in
your letter of request, the above provision of law may be applicable in the
event that the entity attempts to contract with the county. In this respect,
it is noted that the above provision of law is not a general authorization or
allowance for a public official to contract with his own governmental body
where such is otherwise prohibited by law. The above provision of law is
merely a procedure to be utilized when such contracting is not otherwise
prohibited. In the event that such is permitted and that you would be in the
relationship vis -a -vis the corporation as noted above, then the above
provision would require that an open and public process be used, said process
to include, prior public announcement of the contracting possibility, in a
sufficient period of time for the public and other individuals interested to
have notice of such possibility, public disclosure of all applications
received and public notice of the application finally accepted. In addition,
you, as a public official, must, of course, abstain from participating in all
of the county's consideration in such matters. In addition thereto, such
abstention must be publicly noted and recorded. It is once again noted, that
this general procedure is not to be considered as an allowance of contracting
where such is otherwise prohibited by law.
Finally, the State Ethics Act provides that this Commission may address
other areas of possible conflicts as they arise. 65 P.S. §403(d). I;n the
event that any questions arise relating to your future activities that are not
encompassed by the general provisions of the State Ethics Act, you are advised
to seek the further advice of this Commission.
It should be noted that your business interest and all income in excess
of $500, must be reported in accordance with the financial disclosure
provisions of the State Ethics Act. 65 P.S. §404(a).
Mr. Frank B. Mascara
November 18, 1986
Page 4
Conclusion: While the State Ethics Act presents no per se prohibition upon a
public official's involvement in private business enterprises, he must conform
his conduct, as a public official, to the requirements of the State Ethics
Act. Said requirements, as outlined above, are general ill na and the
further specific advice of this Commission can be sought as needed.
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.
T'h.!s 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
cha 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 nc
ohn J.
Gene : Counsel