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HomeMy WebLinkAbout87-530 WeigleSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 30, 1987 ADVICE OF COUNSEL Mr. Jerry A. Weigle Mark, Weigle & Perkins 1.15 East King Street Shippensburg, PA 17257 Re: Bourough Councilman, Borough Mayor, Application for Position of Borough Solicitor 87 -530 Dear Mr. Weigle: This responds to your letter of March 13, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether a borough councilmember and borough mayor who are partners in the practice of law, may apply for and receive the position of borough solicitor. Discussion: You advise that you currently serve as the mayor of the borough of Shippensburg, and have served in that capacity since January 1982. Your law partner, David P. Perkins, is currently serving as a member of the Shippensburg borough council and has served in that capacity since January 1986. You advise that in October of 1986, the position of borough solicitor in Shippensburg became vacant, and you immediately indicated that your law firm would be interested in applying for the position. Both you and your partner offered to resign your respective borough positions immediately, if requested to do so and further indicated that you would not attend any meetings or participate in any vote on the applicants for the position of borough solicitor. Furthermore, you advised that you council to obtain a legal opinion from the acting borough u solicitor on the propriety of your actions. You were subsequently advised by council to remain 4 .n office and apply for the position of borough solicitor, with the understandiAg that you would not participate in the selection process. To date you are still in office and have not participated in the selection process. You are currently awaiting council's decision on the applications submitted. If selected you advised that you would resign as borough mayor and your partner will resign as a member of borough council. You have requested the advice of the State Ethics Commission in relation to the above. Specifically, you have requested advice regarding whether either you or your partner have a conflict of interest in applying for the position of borough solicitor. You have also indicated that the borough may create the position of assistant borough solicitor. You have requested the advice of the Ethics Commission in relation to whether you and your partner may participate in the debate and vote on this issue. You have further requested the advice of the estate Ethics Commission regarding whether you are in violation of Section 1404 of the borough code or any other applicable code if you continue in your application for the borough solicitor position. Mr. Jerry A. Weigle March 30, 1987 Page 2 In addition to the foregoing, you have requested information regarding another member of borough council and the propriety of his actions in relation to voting on the issue of the borough solicitor. Discussion: Initially, it should be noted that in relation to your final question, regarding another member of borough council, this Commission will not address such issue in an advisory opinion when such is requested by a third party. Pursuant to the provisions of the State Ethics Act, 65 P.S. §401 et seq., this Commission will only issue an advisory opinion regarding the duties and responsibilities of a public official or public employee at the request of the specific employee whose conduct is the subject of that request, or his authorized representative. As it does not appear that you are representing the borough councilman in question, this Commission will not issue an advisory opinion in relation to his conduct. As borough mayor and as borough councilman, both you and your partner are public officials 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. See Domalakes, 85 -010. Generally, the State Ethics Act would present no per se prohibition upon your law firm's application to become the borough solicitor. The State Ethics Commission has review questions of a similar nature in the past, and has determined that while there are certain limitations on the public officials serving in office when his law firm seeks to become the municipality's solicitor, the Act does not present an absolute bar to this activity. See Smith, 85 -605; Fields, 82 -006. Initially, it should be noted that the State Ethics Act provides as follows: 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 director, 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). Initially, it should be noted that this particular provision of the State Ethics Act is not generally considered to be an authorization for a public official to contract with a governmental body. This specific provision of the law has been interpreted by this Commission to be the procedure that is Mr. Jerry A. Weigle March 30, 1987 Page 3 utilized when contracting is otherwise permitted by law. Therefore, if contracting with your own governmental body would be prohbited by another provision of law, then this particular provision of the Ethics Act would not permit that contracting. Such is the procedure to be used when the contracting is otherwise permitted by law. In the event that there is no particular provision of law prohibiting an application by your firm to become the borough solicitor, the above provision of law would require that an open and public process be employed by the municipality when a member of the municpality's governing body seeks to contract with that entity. This Commission has held that the open and public process requirements of Section 3(c) of the act are applicable to situations where a law firm attempts to become a borough solicitor in a municipality in which one of the members of the firm is serving as an official of that governmental unit. In holding that the open and public provisions of the law are applicable to personal service contracts such as that between the municipality and its solicitor, the Commission realized that these contracts under circumstances described in Section 3(c) may have to be handled differently from the usual requirements of the municipal code. Typically, municpal codes exempt personal or professional services from the biding requirements. 53 P.S. §46402(d)(5). However, the purpose for these exceptions has generally been to free the municipality from mandatory exceptance of the lowest bidder. Commonwealth v. Tice, 272 Pa. 447, (1922). The purpose of this exception from the bidding requirement is manifestly different from the purpose of the Ethics Act in general and Section 3(c) of the Ethics Act in particular. See Cantor, 82 -004. The purpose of the Ethics Act, as expressed in Section 1 of that law, is to strengthen the faith and confidence of the public in their governmental officials. Section 3, in this case, requires that an open and public process in the award of contracts by a municipality to its own public employee /officers, their wives, or a business as defined in Section 3(c). It is obvious that adherence to the open and public process of Section 3(c) if applied to personal, professional contracts, as well as to contracts for goods, will help alleviate the fear that insiders are favored in such employment. Given that fact that the legislature clearly demonstrated an ability to write exceptions for personal /professional service contracts of other codes and did not do so in the Ethics Act, we must conclude that application of 3(c) to such contracts was intended by the legislature. This is so, especially in light of the fact, that Section 1 of the Act express indicates that it is to be liberally construed so as to promote complete dislcosure. In this interpretation and application we do not imply or find a requirement in Section 3(c) that the municipality would be obligated after the open and public process is followed to award the contract to the lowest bidder. See American Totalisator Company v. Seligman, 27 Pa. Commw. Ct. 639, (1976). As stated previously by this Commission, a reasonableness test is to be applied in determining whether the open, public requirements of Section 3(c) have been met. Howard, 79 -044. Thus, before a public employee /official, his immediate family member, or a business as described in Section 3(c) is awarded a Mr. Jerry A. Weigle March 30, 1987 Page 4 personal /professional contract by the municipality he or she serves, there must be: (1) Prior public notice of the contract possibility; (2) Sufficient time for a reasonable and prudent competitor to be able to prepare and submit a proposal /application; (3) Public disclosure of all proposals /applications considered, and; (4) Public disclosure of the contract awarded or offered /accepted. The above procedure, however, does not require that the lowest bidder be awarded the contract. Thus, as long as the open and public process requirements of the Ethics Act are adhered to, then the Ethics Act would not prohibit the application that has been submitted by your law firm in relation to the borough solicitor position. In addition to the foregoing procedure, the Ethics Act also 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). This provision of law would require, that both you and your partner must abstain from participating in any of the borough's decisions, debates, considerations, or activities in relation to the position of borough solicitor. Generally, if either you or your partner were to participate in these matters, you could be considered to be using your public position in order to obtain a financial gain for a business with which you are associated or for yourself. As such, you may not participate in the borough's activities regarding the position of borough solicitor. Additionally, as noted in Section 3(a) of the State Ethics Act, you may not use confidential information obtained through your public positions to advance the chances that your firm would become the borough solicitor. See Smith, 85 -605. Your abstention in the matters as noted above, should be appropriately noted during a public meeting of the borough and your abstention should also be recorded in borough records and minutes. Thus, as long as you did not participate in the Mr. Jerry A. Weigle March 30, 1987 Page 5 borough's decisions regarding the solicitors position, Section 3(a) above would not appear to prohibit your firm's application in relation to this matter. In relation to whether you may participate in the borough's decisions regarding the appointment of an assistant borough solicitor, a position which does not currently exist, there appears to be no reason from deviating from the above standards. The borough solicitor position, as well as the assistant borough solicitor position, would appear to relate to the same set of circumstances. We are not sure from your letter how the creation of this position or the lack thereof, would affect your firm's application. However, as it appears that these positions would be closely related and that youb• decisions in applying for these decisions would somehow depend upon the borough's actions in relation thereto, we advise that you should not participate in the borough's consideration of that matter. In relation to whether you are in violation of the borough code by submitting your application, this Commission does not generally have the authority to interpret the provisions of other municipal codes. In the past, this Commission has been called upon to interpret provisions of municipal codes only in relation to issues where these codes would affect specific provisions of the Ethics Act. For example, this Commission has been called upon on a number of occasions to determine under Section 3(a) of the Stato Ethics Act above, whether a public official has used his position to obtain a financial gain other than the compensation provided by law. In making such a determination, this Commission must first determine what the compensation provided for by law would include. In order to make such a determination, the Commission generally has been called upon to review the enabling legislation for the municpality or the governmental office affected in order to determine what compensation for the official is authorized. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, (1982). Within this rationale, the Commission has in the past determined that a borough official, for example, may not within Section 3(a) of the State Ethics Act receive a financial gain which is not part of the compensation provided for by law. If the municipal codes specifically prohibits a financial gain from being received by that offical and the official uses his position to receive that prohbited financial gain, then such would also be a violation of the State Ethics Act. See Allen, 86 -518. The particular provision of the borough code in question at that time, was Section 1404, 53 P.S. §46404. In the event that your and your partner were contemplating the simultaneous service as solicitor and officials of the borough, then the rationale developed under the Allen theory may be applicable and therefore implicate certain sections of the State Ethics Act. (Additionally, it should be noted that particular provisions of Section 1104, 53 P.S. §46104, may also be applicable.) In light of the fact, however, that both you and your partner have indicated that you will resign your respective official positions in the event that the contract is awarded to your firm, then the above situation would not develop. The Ethics Act thus would present no absolute or per se prohibition upon the submission of your application to be selected as the borough solicitor. Mr. Jerry A. Weigle March 30, 1987 Page 6 Finally, as to whether you should seek the advice of any other authority in relation to this matter, this Commission is not authorized to advice individuals as to the appropriateness of seeking such advice. That decision should be based upon all the pertinent factors involved. This Commission, however, is authorized to issue advice under the provisions of the State. Ethics Act and as will be noted below, the advice that is issued acts as a good faith defense to any action taken under the Ethics Act so long as the material and information supplied has been truthfully disclosed. Conclusion: The State Ethics Act would present no per se prohibition upon a borough councilmember and a borough mayor who are law partners, from submitting an application to the borough to become the borough solicitor. The provisions of the State Ethics Act, as outlined above, regarding an open and public process as well as those relating to your abstention in matters regarding the solicitor position must be observed. In light of the fact that you will resign your respective positions in the event that your firm is selected would alleviate any concerns that the Ethics Act would be implicated in the instant situation. 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. Since ohn Contino ,/' Acting General Counsel