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HomeMy WebLinkAbout90-566 PociusDear Mr. Pocius: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1990 Mr. John J. Pocius 90 -566 Vice President Council of the City of Scranton Scranton, PA 18503 Re: Conflict, Public Official /Employee, City Council, Engineering Firm, Law Suit between Municipal Authority and Landfill, Municipal Authority and Landfill as Clients of Engineering Firm, Employee of Engineering Firm. This responds to your letters of April 18 and May 2, 1990, in which you requested advice from the State Ethics Commiss)on. Issue: You ask whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a member of city council from voting or participating regarding the possible settlement of a lawsuit between the municipal authority and landfill when the councilmember is an employee of the engineering firm which has provided services to both the landfill and the municipal authority. Facts: As a member of the City of Council of Scranton, you request an advisory opinion from this Commission concerning a settlement agreement as to litigation filed at 89 -CIV -5010 in the Lackawanna County Court of Common Pleas. The settlement agreement of the litigation which was filed by the Keystone Landfill, Inc. against the Scranton Sewer Authority and the City of Scranton was passed by Resolution No. 6 on February. 28, 1990 with your abstention. You have submitted a copy of Resolution No. 6 as part of your request. On January 10, 1990, Attorney Leigh Redmon, first assistant city solicitor issued a verbal opinion regarding your involvement with the litigation and possible settlement of the lawsuit. The issue of a conflict on your part according to Attorney Redmon arose as a result of your employment with CECO Associates, Inc., hereinafter CECO, .. wh is a firm of consulting engineers in Scranton, Pennsylvania. CECO Associates, Inc. provided engineering services to Keystone Mr. John J. Pocius Page 2 Landfill regarding the preparation of contractual documents for a double lined landfill located in Dunmore and Throop, Pennsylvania. In addition, CECO Associates, Inc. also serves as a general engineering consultant to the Scranton Sewer Authority. Your employment with CECO was well publicized and disclosed to Mayor James Connors and your fellow councilmembers. Aside from the "possible option" of court appeal of the lawsuit, you state that you honored Attorney Redmon's opinion and refrained from any and all participation in the ultimate resolution of the matter. You have been employed by CECO since April 1, 1974 and in your position as manager, you have general responsibility of overall management and coordination of all engineering projects. You are not and have never been an officer in the corporation or hold any financial interest therein. Your involvement with the Keystone Landfill Project was minimal and was prior to your service on Scranton City Council from January 1, 1990. As to the Scranton Sewer Authority your relationship is on -going relative to supervising various engineering projects. However, any professional /client relationship concerning the litigation was performed prior to January 1, 1990. The Scranton Sewer Authority owns the sewer system and waste water treatment plant and operates same by virtue of annual agency agreement with the City of Scranton which as lessee retains the power to establish sewer rental rates for the Authority. After noting that you have sent several letters to the law department requesting a written opinion without any response to date, you assert that it is of the utmost importance to determine your status not only on this particular aspect of the problem, but as to all future matters involving Keystone Landfill or Scranton Sewer Authority that your situation be clarified. You reference your responsibilities as an elected city official as well as you being governed by a Code of Ethics as a registered engineer and land surveyor in Pennsylvania. Finally, as to the Authority, you note that your relationship was a professional /client relationship. Prior to your election to City Council, you as an employee of CEC duties to assist the Authority in the assimilation of technical data for both a hydraulic study performed by another professional engineering firm and also technical data deemed necessary for the Authority's defense in the litigation. You re- emphasize the fact that your position as an engineering manager with CECO limited your duties to those of over sight of staff involved in the day -to -day operations and technical problems of the Authority of which you are not an employee nor member of the board and without any contractual agreements. Discussion: As Councilmember for the City of Scranton, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Mr. John J. Pocius Page 3 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: In addition, provide in part official /employee official /employee value based upon 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. "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. Sections 3(b) and 3(c) of the Ethics Law that no person shall offer to a public anything of monetary value and no public shall solicit or accept any thing of monetary the understanding that the vote, official Mr. John J. Pocius Page 4 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(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 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 supervisor. In applying the proffered facts to Section 3(a) of the Ethics Law quoted above, the focus of our inquiry must relate to Mr. John J. Pocius Page 5 your relationship with. CECO, the landfill and the municipal authority. In applying the statutory definition of conflict which limits the use of authority of office by a public official for a private pecuniary benefit to himself, member of his immediate family or business with which he or a member,of his immediate family is associated, the definition of "business with which - -- associated" requires that the individual be a director, officer, owner, employee or have a financial interest in the entity in question. In the instant matter, since you are an employee of CECO, CECO is a business with which you are associated as that term is defined under the Ethics Law. However, since you do not have such a relationship with either the Keystone Landfill or the Sewer Authority, neither of those two entities are business with which you are associated as the term is defined under the Ethics Law. Accordingly, and as a result of applying the above statutory definition, you as a member of city council would have a conflict as to any matter involving CECO that would come before council, but you would not be precluded from participating or voting on matters of the Keystone Landfill or Authority since those two entities are not businesses with which you are associated under the Ethics Law. Therefore, as to any matter that would come before council regarding CECO, you could not participate or vote in such matters and must comply with the disclosure requirements of Section 3(j) of the Ethics Act outlined above. However, you would not be so restricted as to either the Keystone Landfill or the Authority because those two entities are not business with which you are associated under the Ethics Law. Accordingly, you would not be restricted from voting on the possible settlement of the lawsuit in question. 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 t ey 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 City of Scranton, you are a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would restrict you from participating or voting on any matters involving CECO Associates, Inc. which is a business with which you are associated, said section would not prohibit you from voting on the possible settlement of lawsuit between the Keystone Landfill and the Scranton Sewer Authority since those two entities are not businesses with which you are associated as that term is defined under the Ethics Law. The disclosure requirements of Section Mr. John J. Pocius Page 6 3(j) of the Ethics Law outlined above must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 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. Sincerely, Vincent J. Dopko, Chief Counsel