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HomeMy WebLinkAbout88-605 BonassiSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 11, 1988 John R. Bonassi, Mayor 88 -605 Borough of Green Tree Office of the Mayor 978 Greentree Road Pittsburgh, PA 15220 Re: Conflict of Interest, Borough Mayor, Employment with Firm which Contracts with Borough Dear Mayor Bonassi: This responds to your letter of June 3, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions upon a borough mayor regarding his employment with a firm that contracts with the borough. Facts: You state that you are the Mayor of Greentree and that a matter of concern arose which prompted you to request an opinion from the Borough of Greentree's former solicitor. You then enclose photocopies of such materials as portions of the Annual Report of this Commission, numerous newspaper clippings, minutes of portions of various meetings of the Green Tree Borough Council, news letters and finally, the Borough of Green Tree's solicitors opinion dated May 31, 1988. Since you do not provide any facts or background information in your letter of June 3, 1988, the May 31, 1988 solicitor's opinion will be utilized as a factual basis for issuing this advice.; It is therein stated that Williams- Trebilcock- Whitehead, hereinafter WTW, was one of nine architectural firms that submitted proposals to the Borough Council and WTW was appointed through a motion which was unanimously adopted by Council. After the contract between the Borough of Green Tree and WTW was executed, it is stated that you were contacted by WTW regarding possible employment. After advising Council in writing that you accepted WTW's offer, you John R. Bonassi, Mayor July 11, 1988 Page 2 began said employment. A May 31, 1988, opinion letter states that you did not participate in any vote regarding the retention of WTW as architects for the borough building project. Since you do not set forth any specific question under the Ethics Act in your June 3, 1988 letter, it will be assumed that you are seeking advice as to the propriety of your employment with WTW in light of its existing contractual relationship with the Borough. Discussion: As the Mayor for Green Tree 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 51.1. As such, you are subject to the provisions of the State Ethics Act. The Act does, however, provide 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). Within the above provision of law, no public official may use public office or any confidential information in order to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated. The Act defines business with which one is associated as follows: 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. 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 which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appeal to the Commonwealth Court of Pennsylvania which has affirmed the orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yacobet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use public office to secure any financial gain for himself or for a business with which he is associated. See Domalakes, Opinion 85 -010. Since it is stated John R. Bonassi, Mayor July 11, 1988 Page 3 that the discussions and the motions and the vote and the execution of the contract occurred prior to the offer of your employment and since you as mayor were in a non - voting situation, it does not appear under these facts and circumstances that Section 3(a) of the Ethics Act has been implicated. Section 3(b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a 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. In addition to the foregoing, the State Ethics Act provides as follows: Section 3(c) of the Ethics Act provides: (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 John R. Bonassi, Mayor July 11, 1988 Page 4 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). In relation to the above provision of law, the State Ethics Commission has generally determined that this provision is a procedure to be used when a public official or employee contracts with his own governmental body in excess of $500. Bryan, Opinion 80 -014; Lynch, Opinion 79 -047. The Commission, however, has also determined that the above provision of law is not a general authorization for a public official to contract with his own governmental body where such is otherwise prohibited by law. The above provision of law clearly is intended to be a procedure to be utilized where contracting is otherwise allowed by law. For example, if a particular business transaction was prohibited under Section 3(a) of the State Ethics Act, this particular code prohibits a public official from being interested in a contract, this provision would not allow that interest. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an additional procedure, the open and public process, must be used in all situations where a public official is otherwise appropriately contracting with his own governmental body in excess of $500. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. See, Cantor, 82 -004. ^ Under Section 3(c) of the Ethics Act, if you hold one of the enumerated position of director, officer, owner or holder of stock exceeding 5% of the equity of the fair market value of WTW, then Section 3(c) would be implicated and you would be required to follow the procedures outlined above. (3) John R. Bonassi, Mayor July 11, 1988 Page 5 Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -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 enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, 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 where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. Under Section 3(d) of the Ethics Act, if any matter concerning WTW comes before the Borough, you may not participate in that matter nor may you vote to break a tie on any matter that would be before Borough Council concerning WTW. You would have to note your abstention publicly together with the reason for that abstention. ( 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. Specifically not addressed in this advice is the applicability of the Borough Code in that that does not involve an interpretation of the Ethics Act. Conclusion: As a Mayor for Green Tree Borough you are a public official subject to the provisions of the State Ethics Act. Subject to the qualifications and limitations as noted above, you may simultaneously serve as mayor of Green Tree Borough and be employed by WTW Architectural Firm. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. John R. Bonassi, Mayor July 11, 1988 Page 6 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. Si Vincent J. Dopk , General Counsel