HomeMy WebLinkAbout18-504 SolteszPHONE: 717- 783 -1610
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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