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HomeMy WebLinkAbout87-505 WidnerJoseph H. Widmer, President Widmer Engineering 903 Eighth Avenue Beaver Falls, PA 15010 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 January 13, 1987 ADVICE OF COUNSEL Re: Conflict of Interest, County Commissioner, Private Engineer Dear Mr. Widmer: 87 - 505 This responds to your letter of September 8, 1986, wherein you requested the advice of the State Ethics Commission. We are aware that there has been some delay in the issuance of this advice, however, due to the various questions that you have posed, it has taken a longer period of time to review the issues involved and prepare an appropriate response thereto. Issue: You have presented a series of six questions regarding various situations involving your position as a county commissioner and your private endeavors as a professional engineer. These questions are outlined below. Facts: You advise that you currently serve as an elected Beaver County Commissioner and you serve as the chairman of the board of county commissioners. You further advise that you are owner and president of Widmer Engineering Inc. You advise that your position, as a county commissioner, is one of a full -time nature and that you seldom participate in the day -to -day activities of Widmer Engineering Inc. Prior to your election, as a Beaver County Commissioner, you sought and obtained from the State Ethics Commission, an Advice of Counsel regarding what, . if any, restrictions would be placed upon your firm within the purview of the State Ethics Act in light of your public service. As a result of that request, Advice No. 83 -580, was issued. You have now indicated that other situations, which were originally not anticipated, have developed and are not applicable to the guidance obtained previously. Generally, the new questions, which you have posed, relate to the following situations: Joseph H. Widmer, President January 13, 1986 Page 2 1. Your engineering firm may be asked to perform surveying services by a local attorney. This attorney is also a part -time employee of the District Attorney's Office in the county. As a county commissioner, you serve on the county's salary board and are, in that capacity, called upon to vote for salary increases for county employees, including assistant district attorneys. 2. Your engineering firm may apply for a loan or a mortgage with a local financial institution. You advise that this financial institution may, at some time later, submit a proposal to the county seeking to handle one or more of the county's financial accounts. Under normal circumstances, the chief clerk recommends to the board of commissioners which proposal to accept. 3. Your firm is asked by another firm to join them in submitting a letter of interest to the Pennsylvania Department of Transportation to perform certain services. The request, for a letter of interest, would be publicly advertised in the Pennsylvania Bulletin. Although this would be a joint proposal you advise, that in order to comply with PennDot forms, the letter of interest would be submitted with the other firm being the lead agency and your firm listed as a sub - contractor. The letter of interest would include the forms of both firms. Your joint letter of interest could be shortlisted along with two or three other firms. Thereafter, a meeting would be held for all shortlisted firms. Both your firm and the lead firm would be attending this meeting. Afterwards, a technical proposal and a cost of service proposal would be forwarded on separate dates and in separate envelops. Your technical proposal and cost proposal would be incorporated into the proposal of the lead firm. Your joint proposal may be one selected by PennDot. The decision by PennDot, you advise, is generally based upon the technical proposal. Cost proposal is only considered as to its reasonableness. At a later date, the lead firm may apply to the county, wherein you serve as commissioner, to perform services for that governmental body. You advise that the county would follow the consultant selection procedure as outlined in county resolutions. You have questioned whether you may participate in voting to award the contract to the firm finally selected. 4. Your firm may be asked to perform services for an elected official of the same county in which you serve as commissioner. Such service is provided privately and is unrelated to county government. An immediate family member of the elected official is later recommended for contractual, no -bid, work by by a county department head. 5. Your firm may be asked to perform a service for another engineering firm. This service is unrelated to any county project. Sometime later, this firm is recommended by the selection committee to be awarded a county contract. Joseph H. Widmer, President January 13, 1986 Page 3 6. Your firm purchases ad space in a local newspaper. At sometime later, you are asked to approve the placement of a county ad in the same newspaper. You question whether you may vote for the placement of this county related ad in the newspaper that you have utilized in your private capacity. You have requested the advice of the State Ethics Commission in relation to the above issues. Discussion: Clearly, as Beaver County Commissioner, you are 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. The Ethics Act provides a number of restricted activities in which a public official may not engage during the term of his public service. These restricted activities are the provisions by which guidance must be obtained when reviewing questions such as the ones posed herein. It is also noted, at the outset, that this advice will not address any questions that arise under other codes of conduct or provisions of law that place restrictions on the activities of public officials. The Advice of Counsel and the information and guidance presented herein, is issued solely in pursuant to the State Ethics Act and within the terms and provisions of that law. Primarily, 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). Clearly, within the above provision of law, no public official may use his position in order to obtain a financial gain for himself, for a business with which he is associated or for a member of his immediate family. A public official may not use confidential information obtained through his position for similar purposes. The Ethics Act sets forth the definition of business with which one is associated and provides that: 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. Joseph H. Widmer, President January 13, 1986 Page 4 As set forth in the previous Advice of Counsel, that was issued to you, as a public official, you may not use your position to obtain any financial gain for the business with which you are associated, i.e. Widmer Engineering Inc. Thus, if any of your actions, as a public official, would inure to the benefit of that company, then you would be prohibited from participating in such a matter. For example, if you are to award a contract, at the county level, to a company that would somehow result in Widmer Engineering benefitting thereby, the above provisions of law would be implicated. Clearly, the Advice of Counsel, that was previously issued, addressed this particular situation and set forth the applicable guidelines. In addition to Section 3(a) of the Act above, however, this Commission may also address other areas of possible conflict,. 65 P.S. §403(d). The parameters of the types of activity encompassed by this particular provision of law, are generally determined through a review of the intent and scope of the Ethics Act. Generally, the Ethics Act was promulgated in order to insure the public that the interest of their public officials did not conflict with the public trust. In this respect, a conflict of interest could develop in any situation wherein a public official was called upon to serve one or more interest that are adverse. Thus, we must review the questions that you have posed in light of the foregoing provision of law, as well as, within the general parameters of Section 3(a). It should be noted, herein, that this advice will not address the issues outlined in questions 3 and 5 of your letter of request. This advice will be prospective in nature only and will not concern matters that may have already taken place. In relation to your first question as to whether you may sit and vote on the salary increases of an assistant district attorney, who, as a private attorney has employed the services of your firm, some guidance may be obtained from previously issued opinions of the Commission. In Welz, 86 -001, the State Ethics Commission determined that a township supervisor could not participate or vote in a matter relating to a county wherein the county commissioners had previously employed the services of the township supervisor in relation to a county nursing home. The Commission determined that the county's employment of the firm owned by the township supervisor, in effect, disqualified him from participation in the matter. This was particularly so, in light of the fact, that the township supervisor would be required to rule upon matters relating to the entity that had employed him. In the instant situation, we can see no distinction between the situation in Welz and the current matter. Specifically, the assistant district attorney, upon whose salary you will act has, as a private individual, employed your services to perform functions for his firm. In this respect, you, as a county commissioner, would be acting upon a matter relating to the financial interests of an individual who has employed your business. Thus, under both Section 3(a) and 3(d) of the State Joseph H. Widmer, President January 13, 1986 Page 5 Ethics Act, you would be required to abstain from participating in matters related to the financial interests of this individual who has employed you. Your reason for abstaining should be noted and disclosed at appropriate public meetings wherein these issues are raised. In relation to question number 2, in the event that your firm has received funds from a financial institution that now seeks to do business with the county, while there will apparently be no implication of Section 3(a) in light of the fact that you are not associated with that bank within the aforementioned definition, questions could be-raised under §403(d) of the State Ethics Act. In this respect, it is possible that you will be called upon to serve one or more interest that are adverse. In one respect, as a county commissioner, you will be called upon to act in the best interest of the county. On the other hand, however, you will be asked to rule upon a matter concerning a financial institution that has provided funds for your business. See Bassi, 86-007R. As such, while you may not intentionally attempt to be benefitting this company, there will always be a question as to whether you are acting in the best interest of the county or in the best interest of your firm. This is the exact type of situation which occasions a conflict of interest. In addition, even though the Chief Clerk recommends to the board of commissioners which proposal should be accepted, it is the board of county commissioners that makes the final approval. In this respect, the vote of a county commissioner is extremely important. Thus, you are advised, that in order to avoid a conflict of interest you should not participate in the appointment of a financial institution as the county depository if you have had substantial business dealings with that institution. In relation to item 4, of your letter of request, it is clear that you would not be associated with the elected official who has hired the services of your firm to perform a personal project. However, the State Ethics Act provides, in addition to all of the foregoing provisions, 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). Joseph H. Widmer, President January 13, 1986 Page 6 While we have not made reference to this provision in order to imply that there has or will be a violation thereof, the above provision is noted to provide a complete response to your answer. This provision of law, in addition to the provision which allows this Commission to address other areas of possible conflicts, have been established in order to insure that the interest of public officials are separate and detached from that of their private endeavors. Once again, your participation in a matter, regarding individuals with whom you have had private business dealings, may create the public perception that the above provisions of law have been implicated. Specifically, where you have received a benefit from an individual who now comes before the county seeking to have the county act on a matter that involves that individual, a conflict of interest could be occasioned. As such, it is the better practice for a public official, who is placed in such a situation, to abstain from participating in these types of matters. Finally, in relation to the question that you have posed in item number 6, the Ethics Act would present no prohibition upon the county placing an advertisement in a newspaper in which you have also placed advertisements as a private individual. This situation, of couse, is distinguishable from the previous situations., in that you have employed the services of the newspaper. This paper has not provided any benefit to you. You merely have purchased a service that is generally available to the public. If, however, your use of this newspaper was in the form of a gratuity, then a different situation may develop. As such, in relation to your question, there is no prohibition upon you participating in a matter relating to the county's placement of an ad in a newspaper even though you have also used that newspaper for placement of private advertisements. In the conclusion of your letter of request, you have noted that your engineering firm routinely deals with many individuals and entities within the. county. Those entities subsequently may seek decisions from the county on which you serve as chairman of the hoard. You advise that all of the above will be transacted in the normal course of business. You must, however, realize that public office is a public trust and when an individual undertake public service, he must also forego many of the rights and privileges that he may have had as a private individual. This is so because the individual who undertakes to serve the public must answer to and is responsible for the public interest. This interest may not conflict with his private endeavors and, as such, his activities must be exercised solely within the public interest. While we understand that certain restrictions may inhibit an individual from acting in certain matters wherein he has a private interest, these restrictions would be imposed in the interest of the citizens who the official has seen elected to serve. Conclusion: As a county commissioner, you are subject to the provisions of the State Ethics Act. Your conduct, as a public official, must conform to the requirements of the State Ethics Act as set forth above. Joseph H. Widmer, President January 13, 1986 Page 7 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 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 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. Since et J. Gener Counsel