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