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HomeMy WebLinkAbout91-547 SheffeyMr. Timothy D. Sheffey Egli, Reilly, Wolfson, Sheffey and Schrum 1601 Cornwall Road P.O. Box 389 Lebanon, PA 17042 -0389 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 4, 1991 91 -547 Re: Conflict, Public Official /Employee, County Farmland Preservation Board, Board Member, Attorney, Counsel to the Board. Dear Mr. Sheffey: This responds to your letter of April 24, 1991, 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 member of a county farmland preservation board who is an attorney from applying for the position of counsel to the board. Facts: You are an attorney licensed to practice law in the Commonwealth of Pennsylvania and have been appointed by the Lebanon County Commissioners to serve as a member of and chairman of the Lebanon County Farmland Preservation Board (Board) which was created pursuant to Act 143 of June 30, 1981, P.L. 128, known as the Agricultural Area Security Law. The foregoing law has as its purpose the purchase of development easements from farm owners interested in participating in the program. Since the Lebanon Board is in its inception, specifications are being developed and bids are sought concerning the use of an appraiser and surveyor. In addition, specifications are being developed and the bidding process will soon be undertaken for purposes of obtaining counsel to the Board. The duties of board counsel would be to perform services relative to the purchase of the easements such as performing title examinations and taking the necessary steps to provide good and marketable title which will be insured pursuant to title insurance, preparing the necessary documents for transactions, such as agreements of sale and deed Mr. Timothy D. Shef f ey Page 2 of easements, attending closings and performing all duties necessary for closing and possibly negotiating with the prospective applicant concerning an appropriate easement price. As to the position of counsel to the Board, solicitations will be sought from Lebanon County attorneys by way of public advertisement. Yo_ inquire as to whether it is appropriate for either yourself or a member of your law firm, of which you are a partner, to submit a bid to perform the services. If the foregoing is appropriate, you ask whether any conditions would apply as to the selection process. In this regard, you note that you are aware that you would not participate in the selection of counsel and the selection would be done by other members of the board without any input or comment from you. Discussion: As Chairman for Lebanon County Farmland Preservation Board, 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: 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. Mr. Timothy D. Sheffey Page 3 " The actual of which is duties and public office "Authority of office or employment. power provided by law, the exercise necessary to the performance of responsibilities unique to a particular 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. 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. Timothy D. Sheffey Page 4 commenced within 90 days of the making of the contract or subcontract. , Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the at;ve particular provision of law would require 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 contracting possibility; sufficient time for a reasonable competitor /applicant to be able to present an application or proposal; (3) public disclosure of all applications or proposals considered and; (2) (4) public disclosure of the contract offered and accepted. Section 3(f) official/employee responsibility as contract. of the employment or and prudent prepare and awarded and of the Ethics Law also requires that the public may not have any - supervisory or overall to the implementation or administration of the 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 disclosu - 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 above provisions of the Ethics Law to the instant matter, Section 3(a) of the Ethics Law would not prohibit you or a member of your firm, a business with which you are associated as that term is defined under the Ethics Law, from applying for the position of Board counsel. As to the selection process, you could not participate or vote and must comply with the disclosure requirements of section 3(j) of the Ethics Law outlined above. Further, in the event that either you or a member of your firm are selected by the Board as Board counsel, you could not participate or vote concerning such matters as the setting of your salary as Board counsel, retention of Board counsel, the performance evaluation as to your employment as Board counsel, any matters where questions arise to the appropriateness of your conduct as Board counsel, etc. In addition, in the event that any of your law clients or clients of your law firm seek to participate in the easement program, you likewise could not participate or vote in such matters. Miller, Opinion, 89 -014. As to the selection process itself, since you or a business with which you are associated, namely your law firm would be applying for the position of assistant counsel, a contract for such services would exist; therefore, the procedures as to Section 3(f) of the Ethics Law outlined above must be satisfied. Although, you or a member of your law firm, the business with which you are associated, would not be precluded from applying for the position of Board counsel, the restrictions of Section 3(a), the procedures of 3(f), and the disclosure requirements as to 3(j) outlined above must be followed. Mr. Timothy D. Sheffey Page 5 The propriety of the proposed,. conduct has only been "addressed under the Ethics Law;, the applicability of any other . st&tute, ordinance, regulation or -other code of conduct :o 'that;, the Ethics yaw has not been considered in that they do sot .iniolve an interpretation of the Ethics Law. Specifically. nbt addressed her,:. "n is the applicability of the Rules of -Professional Conduct:' Conclusion: As Chairman for Lebanon County Farmland Preservation Board, you are a 'public official subject to the provisions. of the Ethics Law. You or a member of your lam firm, the• : .business arith 'which you are associated, would not be 'precluded from applying for the position of Board counsel .provided the restrictions of Section .3 a the f. ( ) • procedures of 3 ( ), and the disclosure requirements as to 3(j) would be • followed. Lastly, the ;propriety of the proposed conduct had. only been addressed underthe Ethics Law. Pursuant to Section 7(11), :this Advice is a complete defense in any enforcement proceeding initiated by the Commission.:,, an'' evidence .of good faith conduct in any other civil or =1/114.4A- proceeding,_ providing 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 Mr..Timothy D. Sheffey Page 6 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 '14111' be scheduled and, a formal Opinion = from the :Commission will be issued. Any such appeal must be ii and : must be received at the Commission within 15 days of the date af° this ',Advice pursuant tc, 51. Pa. Code 52.12. VJD /slj • Sincerely, Vincent'. Dopko, .1Chief Counsel