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HomeMy WebLinkAbout88-551 BrownMr. Ronald J. Brown 169 Westfield Avenue West View, PA 15229 f T ? YE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 ELEPHONE: (717) 783 -1810 April 19, 1988 ADVICE OF COUNSEL 88 -551 Re: Conflict of Interest, Public Official, Civil Service Commission Member, Law Partner as Solicitor to Borough Dear Mr. Brown: This responds to your letter of March 2, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a member of a Civil Service Commission when a member of the law firm with which he is associated is also the solicitor to the borough council which is the appointing authority to the commission. Facts: In your advice request, you state that you are a member of the West View Civil Service Commission, hereinafter Commission, the members of which are appointed by the West View Borough Council. After noting that you receive no compensation or expense reimbursement for your service on the commission, you state that Fred E. Baxter, Jr., Esquire, who is is the solicitor for West View Borough, has become associated with your firm: Grogan, Graffam, McGinley & Lucchino, P.C. You then advise that the borough solicitor, under certain circumstances, may appear before the commission on behalf of the borough although that has not occurred during your tenure on the commission. You then state that the Civil Service Commission is charged with the review of disciplinary actions taken by the council with respect to police employees of the borough and is also responsible for selecting new police employees from a list of qualified candidates. You conclude by requesting advice as to whether there would be a conflict under the Ethics Act for you to serve as a member of the Civil Service Commission under these circumstances. Discussion: As a Civil Service Commission member for West View Borough, you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Mr. Ronald J. Brown April 19, 1988 Page 2 Section 3(a) of the Ethics A:t provi Vie:: 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). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial in other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Crc,ers of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529 (1983). See also Yocabet v. State Ethics Commission, - Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Business with which he is associated." Any business ir which the person or a member of the person's immediate family is a director, officer, owner, employee or holeer of stock. 65 P.S. 402. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) 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 pub.:ic.mployee or candidate for public office shall solicit or accept, Mr. Ronald J. Brown April 19, 1988 Page 3 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). Section 3(b) of the Ethics Act must be referenced in order to provide a comp Sete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or emoloyee must neither offer nor accept anything of value on the understanding or . ith the intention that his judgment would be influenced thereby. It is assumed such ?. situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the cc.anission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also emp veered to address other areas of possible conflict pursuant to Section 3(d), 65 P.S. §403(d). Fritziner, Opinion 80 -008; DeBenedictis, Opinion 3F• -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which emaciates the legislative intent of the Act. The intent and purpose of the 4:A1 iS to strengthen the faith and confidence of the people in their governmern; by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this prevision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or 4ere such an official or employee accepts compensation to which he is not entitled. Domalakes, supra. Under Section 3(a) of the Ethics Act you would not be precluded from serving on the Civil Service Commission since Mr. Baxter is the solicitor to the borough whereas you are a member of the Commission and it does not appear under these circumstances that you could or would be able to use your public c 17 ice to ob :ui n financial gain other than the compensation provided for by yaw r_or. your or uusiress with which you are associated. However, unde,° Section 3(u -f the Ftnics :Aar, in the event that the borough solicitor or ar, Mr. Ronald J. Brcwn April 19, 19 Page 4 member of the firm with which you are assoia.E'd , s1uuld ever appear before the Commission, you must abstain from participating in that particular matter, note your abstention of public record and give the reason for your abstention so to avoid a conflict or even the appearance of a conflict with the public trust. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a member of the West View Civil Service Commission, you are a public official subject to the provisions of the State Ethics Act. Although under Section 3(a) of the Ethics Act you may serve on the Civil Service Commission even though you and the borough solicitor are associated with the same law firm, you must under Section 3(d) of the Ethics Act abstain in any matter before the Commission wherein your law firm or the borough solicitor appears so as to avoid a conflict or the appearance of a conflict. In this regard, you must note your abstention of public record together with the reason for that abstention. Lastly, the propriety of the proposed conduct has cnit• been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any em=orcement 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 withi is 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si ncerely, Ce0-1. Vincent J. Dopko, General Counsel