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HomeMy WebLinkAbout91-577 PetroskySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 9, 1991 Mr. Metro Petrosky, Jr., Commissioner 91 -577 County of Washington Commonwealth of Pennsylvania Courthouse Square, Room 702 Washington, PA 15301 Re: Conflict, Public Official /Employee, County Commissioner, Business with which Associated, Travel Agency. Dear Mr. Petrosky: This responds to your letter of August 2, 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 you as a County Commissioner with regard to your involvement as a salesperson_ for a travel agency which may deal with individuals /organizations involved with County government either in the past or at the present time. Facts: As a County Commissioner for the County of Washington, Pennsylvania, you seek the advice of the State Ethics Commission regarding your involvement as a salesperson for a travel agency. After initially noting that you have previously spoken by telephone with the Assistant Counsel for this Commission, you state that you are concerned about possible conflicts of interest regarding business dealings with organizations involved with County government, either in the past or at the present time. Discussion: It is initially noted that your inquiry is general, and so, the response to your inquiry must also be general. As a County Commissioner for the County of Washington, Pennsylvania, 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. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 2 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. "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. Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 3 "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 4 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. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above 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 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 of the contract. However, should the travel agency seek to contract with your governmental body, you are strongly cautioned to seek the advice of an attorney with regard to the restrictions of the ` County Code, and specifically S1806 which p ;oyides: Section 1806. County Officers Not to Be Interested in Contracts Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 5 16 P.S. §1806. No elected or appointed county officer shall be in any wise, either directly or indirectly, personally interested in any contract to which the county is a party, or in the construction of any public work or improvement made or undertaken under the authority of the county commissioners, or receive any reward or gratuity from any person so interested. No such officer shall purchase directly or indirectly any property sold at a tax or municipal claim sale. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ($500) and may, by decree of the court, be removed from office. 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 Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 6 herein. governing where one a result remaining have cast abstained the tie otherwise In the case of a three - member 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 the event that the required abstention results in the inability of the _governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. You have specifically inquired as to possible conflicts of interest arising from business dealings with organizations involved with the County government either in the past or at the present time. The restrictions of Section 3(a) of the Ethics Law would not require that you abstain as a public official regarding each and every individual or organization which at any time has been a customer of the travel agency. Such a blanket prohibition could conceivably prevent you from voting on the majority of matters before the Commission, regardless of the minimal involvement the travel agency may have had with the individual /organization involved. However, there are circumstances where the travel agency's involvement with the individual or organization would not be casual or infrequent. In those circumstances, there is a potential for a conflict of interest to arise. See, Miller, Opinion 89 -024. Some hypothetical applications would include the following. If, for example, a business entity were to designate your travel agency as the exclusive agency for its travel needs, or if it were to designate your agency for providing travel services to its employees in the context of employee benefits, such a connection with your travel agency would be a sufficient nexus to establish a conflict of interest should that organization come before you as a County official: Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 7 As a second example, individuals or business entities providing the travel agency with equipment or services, would present a conflict of interest should they come before you in your official capacity as a County Commissioner. These examples are provided to help you understand some of the parameters that would apply in given situations. However, given that your general inquiry necessitated a general response, should other specific factual circumstances arise, you may, of course, seek further advice from this Commission. 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 note addressed herein is the applicability of the County Code. Conclusion: As a County Commissioner for Washington County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. As a County Commissioner who is involved as a salesperson for a travel agency, you must comply with the restrictions of Sections 3(a), 3(b), 3(c), 3(f), and 3(j) of the Ethics Law as set forth above. Although a conflict of interest would not be presented with regard to each and every customer of the travel agency who may come before you in your official capacity, there would be instances where such a conflict of interest would be presented. Your conduct must conform to the general parameters set forth above, and it is recommended that you seek the further advice of this Commission should particular potential conflicts of interest arise involving more than mere casual, infrequent customers of the travel agency. 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 t4is 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 Mr. Metro Petrosky, Jr., Commissioner September 9, 1991 Page 8 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, +r cJ�M U Vincent Dopko Chief Counsel