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HomeMy WebLinkAbout88-614 MascaraFrank R. Mascara, Chairman Board of County Commissioners County of Washington Courthouse Square, Room 702 Washington, PA 15301 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 29, 1988 88 -614 Re: Conflict of Interest, County Commissioner, Employment as a Public Accountant; Employment in Son's Consulting Business Dear Mr. Mascara: This responds to your letter of June 13, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions upon a county commissioner from working as licensed public accountant in municipalities other than his governmental body and secondly from working as an employee in his son's consulting business with or without compensation as to matters which may involve government agencies other than his governmental body. Facts: As a County Commissioner for Washington County you state that you requested previous advice (86 -627) from this Commission regarding your private business interests but were unable, at that time, to provide the Commission with specifics; you now state that you are in a position to provide specifics as to the business matters in which you wish to engage. After noting that you are a licensed public accountant, you question whether you may as part of your practice, accept engagements from municipal bodies including counties other than Washington County. Secondly, you ask whether you may be employed with or without Frank R. Mascara, Chairman July 29, 1988 Page 2 compensation in a consulting business of your son and another individual. After advising that the consulting business will cover such matters as energy, solid waste, labor negotiations, etc., you ask whether you would be permitted to assist them in procuring work from governmental or quasi governmental bodies other than Washington County. Discussion: As a County Commissioner for Washington County, you are :a public official as that term is defined in the State Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. et seq. Your conduct must conform to the requirements of that law. 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. Code §403(a). Within the above provision of law, no public official may use his position or any confidential information obtained therein 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 or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed 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. Frank R. Mascara, Chairman July 29, 1988 Page 3 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. 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete 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 employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. You must be cognizant of this provision of law and follow its mandate. 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 contracts awarded. Any contract made in Frank R. Mascara, Chairman July 29, 1988 Page 4 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 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, then Section 3(c) would prohibit a public official from being interested in such a contract. 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; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. See, Cantor, 82 -004. In applying the above provisions of the Ethics Act to the specific questions that you have posed, Section 3(a) of the Ethics Act would not per se preclude you from obtaining employment from municipal bodies and counties other than Washington County. However, you may not use public office or confidential information to obtain this employment. For example, you could not use your public position or the status of your public office as the means of obtaining any business. Thus, you Frank R. Mascara, Chairman July 29, 1988 Page 5 could only make contacts or advertise as an accountant without reference to your status as a public official. Further, any contacts or business solicitation could not be done at your public office nor could you use the county office, personnel, equipment or supplies in your accounting business. See Dorrance, Order 456. Thus, although Section 3(a) of the Ethics Act would not preclude your outside employment, you may not use public office or confidential information as the means, in whole or in part, to obtain such business. Further, you should be cognizant that the County Code also imposes certain restrictions upon your conduct, is for example Section 402, 16 P.S. 402. However, since the County Code is separate and apart from the Ethics Act, such other statutes may not be addressed in this advice because they do not involve an interpretation of the Ethics Act. Further, since you have stated that you would not engage in outside employment with Washington County, that issue need not be addressed. As to the matter of the consulting business of your son and another individual, again Section 3(a) of the Ethics Act would not prohibit you from working for that firm with or without compensation subject to the qualifications and limitations as noted relative to your accounting practice. Since you also stated that you would expressly exclude Washington County from your involvement in this type of employment, that issue need not be addressed. As to the application of Section 3(c) of the Ethics Act, that provision concerns procedures for contracting by a public official with his governmental body. Since you have stated that you would not be involved in any type of outside employment with your governmental body which is Washington County, the issue of the applicability of Section 3(c) need not be addressed. 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 Commissioner for Washington County you are a public official subject to the provisions of the Ethics Act. Under the facts and circumstances outlined above, Section 3(a) of the Ethics Act would not prohibit you from obtaining private employment as an accountant or as a consultant or part owner in a Frank R. Mascara, Chairman July 29, 1988 Page 6 consulting business of your son and another individual from municipal bodies other than Washington County, subject to the qualifications and limitations as noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as 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 52.12. Sincerely, Vincent X. Dopko, General Counsel