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HomeMy WebLinkAbout90-579 OlivettiDear Mr. Olivetti: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 8, 1990 Mr. Armand E. Olivetti, Jr. 90 -579 Olivetti & Scacchitti 402 United Penn Bank Bldg. Spruce Street at Wyoming Avenue Scranton, PA 18503 -1814 Re: Conflict, Public Official /Employee, Borough, Solicitor, Representation of Clients. This responds to your letters of May 25 and June 25, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a solicitor from participating in matters which an entity has before the borough when the entity is also a client of the solicitors private law firm. Facts: You are the solicitor for Dunmore Borough in Lackawanna County and seek an advisory opinion regarding a potential conflict of interest. You represent a real estate holding company, F & L Realty for the limited purpose of acquiring title to tax delinquent properties. In two cases the properties were placed in your name as trustee but you are not the general counsel of F & L Realty. You have approximately ten files with F & L Realty which owns a large amount of land some of which is located within the borough. On occasion Dunmore and F & L have had dealings relative to the acquisition of the interests in realty or right of ways. The principals of F & L are also principals in two other businesses located in the Borough of Dunmore, both of which have significant business relationships with Dunmore. The one business is Delaples Auto Parts which is the subject of a zoning violation dispute. The dispute may be resolved amicably between the borough and DeNaples Auto Parts and, if not, a permit revocation proceeding will be commenced. The second business is Keystone Sanitary Landfill which is alleged to have violated a contract with the borough for the payment of road improvement assessments and free garbage Mr. Armand E. Olivetti, Jr. Page 2 disposal. As to the landfill situation, negotiations are in progress but it appears that litigation will be imminent. After noting that you neither represent DeNaples Auto Parts or Keystone Landfill which are represented by other counsel, F & L Realty and the borough are aware of your relationship with those other two concerns. You have publicly disclosed your relationship with F & L at a public meeting and have arranged for independent review of any decisions you make with respect to F & L Keystone and DeNaples by the zoning hearing board's solicitor who is knowledgeable in municipal law and who to your knowledge has no conflict with any of these concerns. You advise that you have indicated to the principals of all parties concerned that you would recuse yourself from participation in any of these matters at the request of any of them but no one has objected or made such requests. You seek an advisory opinion as to the limitations upon any future conduct that you have in these matters. In this regard you note that at a June 8, 1990 meeting of the Dunmore Planning Commission, the chairman of the commission publicly questioned whether you had a conflict of interest because of the above circumstances and he attempted to declare the business transacted by the borough council as null and void. You therefore ask for a prospective advisory opinion as to the future instances in which you may be called as borough solicitor regarding one of the three mentioned concerns. Discussion: As solicitor for Dunmore Borough, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Spataro,, Opinion 89 -009. 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 Mr. Armand E. Olivetti, Jr. Page 3 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. 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 Mr. Armand E. Olivetti, Jr. Page 4 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 provisions of Section 3(a) of the Ethics Law to the instant matter, there is no question that your private law firm is a business with which you are associated. In addition, F & L Reality is a client for your private law firm. However, neither DeNaples Auto Parts nor Keystone Sanitary Landfill are such clients. Therefore, as to any matters which F & L Realty would have before the counsel, you could not participate in such matters. See Miller, Opinion 89 -024 wherein the Commission held that a township zoning officer who was employed by a private firm could not participate or play any role as to matters with which that firm or its clients had before the township. Since a conflict would exist as to F & L Realty, you have to comply with the disclosure requirements of Section 3(j) of the Ethics Law outlined above. However, as to DeNaples Auto Parts and Keystone Sanitary Landfill, you would not have a conflict as to either of those two entities since they are neither clients of your firm nor business with which you are associated. Accordingly, you would not be restricted from participating in matters concerning DeNaples Auto Parts or Keystone Sanitary Landfill. 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 or Rules of Professional Conduct. Conclusion: As Solicitor for Dunmore Borough, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit you from participating in Mr. Armand E. Olivetti, Jr. Page 5 matters involving F & L Realty which is a client of your law firm, but you would not have a conflict and could participate in matters concerning DeNaples Auto Parts and Keystone Sanitary Landfill. 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 52.12. Sincerely, Vincent J. Dopko, Chief Counsel