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HomeMy WebLinkAbout90-549 JonesDear Mr. Jones: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 17, 1990 Mr. William T. Jones, Esquire 90 -549 Law Offices of Levy & Preate Fourth Floor Scranton Electric Building Scranton, PA 18503 Re: Conflict, Public Official /Employee, Borough Councilmember, Vote, Business With Which He Is Associated. This responds to your letters of February 23. and April 3, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough councilmember from voting or participating on matters concerning a business with which he is associated or from companies that compete with the business with which he is associated. Facts: As the solicitor for Taylor Borough and on behalf of the President of Council Harry Armstrong, you seek an advisory opinion regarding the conduct of Mr. Armstrong who is an employee of Amity Lumber. You note that Mr. Amity also operates additional businesses that are located or do business with the Borough of Taylor. You then pose four questions and ask whether a conflict would arise under any of those circumstances. First, you inquire as to whether a councilmember may vote on matters that either directly or indirectly impact upon his employer or other companies that would be related or affiliated with his employer. Second, assuming that the councilmember could not vote in the first situation, you seek advise as to whether he may vote on matters that would indirectly impact upon their employers as well as the general community such as voting on a borough wide zoning ordinance. Third, since Mr. Armstrong has been continually employed by the same employer, you inquire as to whether that continuous employment would negate the need for him to abstain as to voting on matters directly related to that Mr. William T. Jones Page 2 employer. Lastly, you pose the hypothetical of two councilmembers employed by two different competing companies and as whether they may vote on a matter which would be detrimental to the employer of the other councilmember. Discussion: As Councilmember for Taylor Borough, Harry Armstrong is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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 family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or . which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or 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. Mr. William T. Jones Page 3 "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. Section 3(a) restricts a public official /employee from using confidential information or the authority of public office to obtain a private pecuniary benefit for himself, a member, of his immediate family or business with which he or a member of his immediate family is associated. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides: Section 3. Restricted activities. (f) 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 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 Mr. William T. Jones Page 4 commenced within 90 days of the making of the contract or subcontract. Where contracting is otherwise allowed or where there appears to be no expressed prohibition to such contracting, Section 3(f) requires that an open and public process must be used in all situations where a public official / employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; sufficient time for a reasonable competitor /applicant to be able to present an application or proposal; public disclosure of all applications considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. and prudent prepare and or proposals Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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 Mr. William T. Jones Page 5 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 .provided 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or his supervisor. In this case since Mr. Armstrong is employed by Amity Lumber, such would be a business with which he is associated. Accordingly, Mr. Armstrong could not vote on matters that would directly or indirectly affect his employer and Section 3(j) of the Ethics Law would require him to note his abstention of public record as well as file a written memorandum to that effect with the secretary recording the minutes. As to your second inquiry regarding voting on matters having an indirect impact, the definition of conflict does have an exclusion whereby a public official may vote on matters having a de minimus economic impact or which affects to the same degree a class consisting of the general public or subclass consisting of an occupation industry or group which would include the public official or business with which he is associated. Thus, the restrictions of Section 3(a) could extend to an indirect impact unless the matter was of a de minimus economic impact or affected to the same degree a class or subclass. As to your example, the councilmember would not be precluded from voting on a borough wide ordinance. However, if the matter was limited in impact to only a part of the borough which would include his employer or himself or member of his immediate family, then in that instance he would be , precluded from voting. Concerning your third inquiry as to whether Mr. Armstrong's continuous employment would negate the necessity of abstention, Section 3(a) of the Ethics Law is explicit in that abstention is required in all situations involving conflicts, that is, the use of authority of office to obtain a private pecuniary benefit for the public official, member of his immediate family or business with which he is associated. Therefore, in those instances, it would be necessary for Mr. Mr. William T. Jones Page 6 Armstrong to continue to abstain as to matters involving Amity Lumber that would be before Taylor Borough Council. The fourth inquiry you pose concerns a matter of a councilmember voting in a situation as to a company which would compete with the business with which he is associated. Normally, Section 3(a) of the Ethics Law would not restrict the councilmember from voting as to a competing company since it should not be a business with which he is associated as that term is defined under the Ethics Law. However, if the situation exists that the voting aaainst a competitor would have the effect of insuring that the business with which the public official is associated would obtain a contract or pecuniary benefit, then in that instance the individual must abstain and observe the requirements of Section 3(j) noted above. In Pepper Opinion 87- 008, the Commission specifically held that public officials must not only abstain from participation in voting as to matters wherein they have a personal financial interest but also in cases where their negative vote would in turn advance their own personal financial interest. Accordingly, the councilmember could vote on a matter of a competing company unless the effect of casting a negative vote as to that company would insure a benefit to the business with which he is associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As Councilmember for Taylor Borough, Harry Armstrong is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law restricts a public official from voting or participating on matters involving himself, a member of his immediate family or business with which he is associated. Section 3(j) of the Ethics Law would require him to abstain and publicly announce the reason for his abstention as well as file a written memorandum to that effect with the secretary recording the minutes. In addition, the public official could not vote on matters involving a company competing with the business with which he is associated if he would be casting a negative vote against the competing company which would insure a pecuniary benefit for the business with which he is associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Mr. William T. Jones Page 7 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 2.12. Sigcerely, Vincent Dopko, Chief Counsel