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HomeMy WebLinkAbout90-570 BloomMr. F. Walter Bloom, III City Solicitor Rosen, Rosen & Bloom 207 Seneca Street Oil City, PA 16301 Dear Mr. Bloom: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 13, 1990 90 -570 Re: Conflict, Public Official /Employee, City, Mayor, Employment, Corporation. This responds to your letter of April 24, 1990, in „wh.i4h you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a mayor from obtaining outside employment with a corporation which seeks grants and loans from local, state and federal agencies. Facts: As solicitor for Oil City and on behalf of the Mayor Howard T. Gierling, you request advice regarding an employment opportunity by Gierling as a consultant for a local corporation. Gierling's endeavors on behalf of the private industry corporation would include the seeking of grants and loans from local, state and federal agencies as well as preparing the appropriate application for the government loans. After noting that Oil City is the third class city and operates under the City -Mayor form of the "Optional Third Class City Charter Law ", you reference Section 41508 of that law regarding the Mayor's powers and duties: S41508. Mayor's powers and duties; bonds, notes, contracts, written obligations. The Mayor shall preside at all meetings of the city council and shall have a voice and vote in its proceedings. All bonds, notes, contracts and written obligations of the city shall be executed on its behalf by the mayor and controller or, in the event of the mayor's inability to act, by the controller and such councilman as the city council shall designate to act as mayor during his absence or disability. The powers Mr. F. Walter Bloom, III Page 2 and duties of the mayor shall be only such as are expressly conferred upon him by this article. You conclude by requesting an advisory opinion as to whether Gierling may pursue and conduct the above activities under the Ethics Law. Discussion: As Mayor for Oil City, Howard T. Gierling 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. F. Walter Bloom, III 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. / 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 commenced within 90 days of the making of the contract or subcontract. The above particular provision of law would require that an open and public process must be used in all situations where a Mr. F. Walter Bloom, III Page 4 / 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; (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. 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 7f the contract. 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 Mr. F. Walter Bloom, III Page 5 governing where one a result remaining have cast abstained the tie otherwise body of a political subdivision, member has abstained from voting as of a conflict of interest, and the two members of the governing body opposing votes, the member who has shall be permitted to vote to break vote if disclosure is made as 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 above provisions of the Ethics Law to the instant matter, the Commission has determined that a public official /employee is not precluded from outside employment or business activities. Pancoe, Opinion 89 -011. Of course, the public official /employee can not engage in his private business pursuits during governmental hours nor may he use government facilities, personnel or equipment to conduct such outside business activities. Pancoe, supra. Thus, subject to the above qualification, Gierling may engage in such activities for the private corporation as to federal, state and local municipalities other than Oil City. As to Oil City, any contacts which the corporation would have with the city would create a conflict on the part of Gierling because the corporation is a business with which he is associated as that term is defined under the Ethics Law quoted above. Gierling could not participate or vote, assuming that he has the power to vote to break ties, in any matter involving the corporation by which he is employed. Further, the disclosure requirements as outlined above must be followed. In addition, since the corporation is a business with which Gierling is associated, any contracting between the corporation and Oil City must be done through an open and public process as per the requirements of Section 3(f) quoted above. Subject to the above limitations, Gierling would not be precluded from employment by the private industry corporation. 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 Mayor for Oil City, Howard T. Gierling is a public official subject to the provisions of the Ethics Law. The Ethics Law would not prohibit Gierling from obtaining outside Mr. F. Walter Bloom, III Page 6 such. incent ',l Dopko, Chief Counsel employment with the private industry corporation that seeks grants and loans from local, state and federal government agencies subject to the qualifications and limitations as noted above. 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. 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 wilting and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12.