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HomeMy WebLinkAbout18-504 SolteszPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: Daniel Soltesz Dear Mr. Soltesz: ADVICE OF COUNSEL February 9, 2018 FACSIMILE: 71 7- 787 -0806 WEBSITE: www.ethics.1a.aay 18 -504 This responds to your letter received December 15, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 7a. -S. § 1101 et se q., would impose prohibitions or restrictions upon an individual serving as a borough council member with regard to accepting employment with a company that has a contract with the borough to provide grant writing and lobbying services to the borough. Facts: You request an advisory from the Commission based on submitted facts Ta—Fffi- ay be fairly summarized as follows. You are a Member of Council for the Borough of Pleasant Hills ( "Borough "), located in Allegheny County, Pennsylvania. You serve as Chairman of the Boroughh Finance Committee, in which capacity you are responsible for overseeing the investment of available funds by the Borough administration. You have been offered employment with a company amed "Wellington Strategies" (the "Company ") that has a contract (the "Contract' with the Borough to provide grant writing and lobbying services to the Borough. You state that the Company has assured you that you would not be involved in any work related to the Borough. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to acceptin employment with the Company. You state that if you would become employed withhe Company, you would abstain from any votes of Borough Council related to the Company's status with the Borough or the Company's performance of services for the Borough. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an Soltesz, 18 -504 Fe-Fr—uary 9, 2018 Page 2 independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 11070 0 , (11). An advisory only affords a defense to the extent the requester has truthfully disc used all of the material facts. As a Borough Council Member, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict.- -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise pprovided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate amily or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general Soltesz, 18 -504 Page 3 eaery 9, 2018 public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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 has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or Soltesz, 18 -504 r�uary 9, 2018 Page 4 public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public officiallpublic employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and public process" be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory, or overall responsibility as to the implementation or administration of the contract with the governmental body. It is administratively noted that Section 1404 of the Borough Code provides: "Elected and appointed borough officials and borough employees are restricted from an interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11 (relating to ethics standards and financial disclosure)." 8 Pa.C.S. § 1404. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from accepting employment with the Company. However, if you would become employed with the Company, the Company would be a business with which ou are associated in your capacity as an employee, and pursuant to Section 1103(a of the Ethics Act, you generally would have a conflict of interest in your public capacity as a Borough Council Member with regard to matter(s) pertaining to the Company or the Contract, including but not limited to overseeing work performed by the Company relative to the Contract or participating in matter(s) involving renewal(s) of the Contract or future contract(s) between the Borough and the Company. In addition, you generally would have a conflict of interest with regard to voting to approve payment(s) to the Company. Soltesz, 18 -504 e ruary 9, 2018 Page 5 In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. You are advised that the restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed whenever applicable. Section 1103(f) would not be applicable to the Contract given that the Contract was not entered into at a time when the Company would be considered a business with which you are associated. Cf., Lind, Advice 16 -547; Shearer, Advice 15 -539; Confidential Advice, 14 -514; Lewis, AdVi -ce�f' 3 -587. However, any renewals) of the Contract or future contract(s) between the Borough and the Company valued at $500.00 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that: (1) you would be a Borough Council Member; and (2) the Company would be a business with which you are associated. 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 otther than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are a Member of Council far the Borough of Pleasant Hills ( "Borough "), located in Allegheny County, Pennsylvania; (2) you serve as Chairman of the Borough Finance Committee, in which capaci�y you are responsible for overseeing the investment of available funds by the Borough administration; (3) you have been offered employment with a company named "Wellington Strategies" (the "Company ") that has a contract (the "Contract ") with the Borough to provide grant writing and lobbying services to the Borough; and (4) the Company has assured you that you would not be involved in any work related to the Borough, you are advised as follows. As a Borough Council Member, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act'), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from accepting employment with the Company. However, if you would become employed with the Company, the Company would be a business with which you are associated in your capacity as an employee, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in your public capacity as a Borough Council Member with regard to matter(s) pertaining to the Company or the Contract, including but not limited to overseeing work performed by the Company relative to the Contract or E in matter(s) involving renewal(s) of the Contract or future contract(s) between the Borough and the Company. In addition, you generally would have a conflict of interest with regard to voting to approve payment(s) to the Company. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed whenever applicable. Section 1103(f) would not be applicable to the Contract given that the Contract was not entered into at a time when the Company would be considered a business with which you are associated. However, any renewal(s) of the Contract or future contract(s) between the Borough and the Company Soltesz, 18 -504 Fury 9, 2018 Page 6 valued at $500.00 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that: (1) you would be a Borough Council Member; and (2) the Company would be a business with which you are associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § �3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, U�Ro�Uil Chief Counsel