HomeMy WebLinkAbout87-558 MarlesSTATE ETHICS CC. 1IS 0°
308 FINANCE IT SING
P.O. BOX 11
HARRISBURG, PA 17 '8 -1470
TELEPHONE (717) 783 -1610
May 11, 1987
ADVICE OF COUNSEL
87 -558
Mr. Blake C. Marles, Esquire
The Traylor
15th and Hamilton Streets
Allentown, PA 18102
Re: Conflict of Interest, Borough Council Member, Litigation with Borough
Dear Mr. Marles:
This responds to your letter of April 13, 1987, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the State Ethics Act presents any prohibitions upon a member
of borough council serving on that governmental body when he is also involved
with a company that currently has litigation pending with the borough.
Facts: You advise that you are representing a local borough council
member in the Commonwealth of Pennsylvania. You have requested the advice of
the Commission on behalf of this council member. The individual in question,
is the founder and former executive officer of a local business the primary
operations of which are located in the borough in which this individual serves
as a council member. The individual in question, is no longer actively
involved in the operations of the business but you do advise that he continues
to be associated with the business within the definitional parameters of the
State Ethics Act.
During the summer of 1986, a demand was made of the business by the
borough to pay business priviledge taxes. Prior to that time, the business
had been considered exempt from taxation based upon the manufacturing
exemption in the Local Tax Enabling Act. After negotiations over the
applicable period for which taxes would be demanded, a law suit was commenced
by the borough against the business. The business responded, and in part,
challenged the validity of the taxation ordinance on several legal theories.
The litigation is currently pending. All information obtained by the borough
council member on behalf of this suit, was obtained through normal discovery
channels. You have requested the advice of the State Ethics Commission
regarding whether there is a conflict of interest which would prohibit him
from continuing serving on the borough council in light of the current
litigation.
Mr. Blake C. Marles, Esquire
May 11, 1987
Page 2
Discussion: As a member of borough council, the individual involved in the
instant situation would clearly be a public official as that term is defined
in ?he State Ethics Act. 65 P.S. §402. As such, his conduct as an official,
must conform to the requirements of that law. See Domalakes, 85 -010.
Generally, the Ethics Act provides as follows:
SQction 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).
Withi the above provision of law, no public official may use his position in
order to obtain a financial gain for any business with which he is associated.
Additionally, the offical may not use confidential information obtained in the
public position for similar purposes. This Commission, on at least one prior
occassion, has addressed, by way of an advice of counsel, an issued similar to
the one presented herein. In Zaeng_er, 81 -567, the Commission determined that
the Ethics Act would not absolutely prohibit an individual from seeking public
office in a county when the individual had litigation pending against the
county. The Commission, of course, determined that the individual, if
elected, within the above provision of law must not participate in any matter
as a public official that relates to the litigation. Additionally, the
official may not use confidential information obtained in or through his
public position for similar purposes. The Commission determined that the
individual must have his abstention in such matters publicly noted and
approrpiately recorded in the governmental body's minutes.
In additon to the foregoing, this Commission may also address other areas
of possible conflict of interest. 65 P.S. §403(d). The parameters of the
activities encompassed by this particular provision of the Act, are determined
through a review in the intent of the law. The Ethics Act was enacted to
ensure that the financial interest of a public official do not conflict with
the public trust. Such conflict of interest would develop at any time when
the official attempts to serve one or more interests that are adverse. In the
instant situation, it is clear that the interests that you have in advancing
your position legally, is one that will affect the financial interest of the
busines with which you are associated. In this respect, as an individual, you
would be interested in ensuring that your business is in the best position
possible. As a member of borough council, however, you would have an interest
adverse to that of your private business interest. As a borough council
Mr. Blake C, Marlcl, Esquire
May 11, 19'7
Page 3
member you would be vested w '.h the publ i ; trust and duty to ;:,isure that the
public interests are advanced, In respect, it is clear that a number of
conflict of interest could actually develop in the i nstar; situation. For
example, if the borough solicitor is representing the borough in this
particular litigation, this is the attorney that is advancing the law suit
against your company. As a borough council member, however, you would have to
deal with the solicitor on a daily basis and you would have some control over
the employment of this individual. In this respect, your conduct as a public
official could potentially conflict with the interest that you have in
relation to this litigation. Thus, in a situation such as the present one,
you should also abstain from participating in matters that relate to the
attorney who is representing the borough against you. Additionally, there may
be any number of activities that while they do not directly relate to the
litigation, could potentially affect the instant situation. This Commission,
of course, can not invision every potential conflict of interest that may
arise in this situation, and as a result you are cautioned that in the event a
question should arise in relation to your conduct as a public official and the
effect that that conduct may have upon the instant litigation, you should se ?k
the further advice of this Commission. Thus, while the Ethics Act would
present no per se prohbitions upon your service in this respect, it is clear
that as a borough council member your activities are to be strictly governed
by the provisions of the State Ethics Act and you must continue to exercise
caution in your dealings in relation to borough business as that business may
effect your private litigation.
Conclusion: While the State Ethics Act presents no per se prohibition upon
your continued service as a borough council member while you currently are
involved in litigation with the borough in a private matter, your conduct as a
public official must conform to the requirements of the State Ethics Act as
outlined above. In addition to the specific requirements set forth in this
advice, this Commission can not invision every potential conflict of interest
that will arise, and as such you are cautioned to seek the further advice of
this Commission in the event that future questions should arise.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, an providing the o o do faith
conduct in any other civil or criminal proceeding, p
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.
Mr. Blake C. Marles, Esquire
May 11, 1987
Page 4
Finally, if you disagree with this Advi
challenge same, you may request that the ful
personal appearance before the Commission wi
Opinion from the Commission will be issued.
writing, to the Commission within 15 days of
to 51 Pa. Code 2.12.
s
ohn J ontino
Act g General Counsel
reason to
ce or if you have any
1 Commission review this Advice. A
11 be scheduled and a formal
Any such appeal must be made, in
service of this Advice pursuant