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HomeMy WebLinkAbout91-594 SulcoveMs. Jan G. Sulcove, Esquire Black and Davison 209 Lincoln Way East P.O. Box 513 Chambersburg, PA 17201 -0513 Dear Attorney Sulcove: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 15, 1991 91 -594 Re: Conflict, Public Official /Employee, Board Member, Municipal Authority, Entertainment, Dinner Meeting to be Sponsored by Solicitor. This responds to your letter of September 19, 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 the Board of a Municipal Authority with regard to your proposed sponsorship, as Solicitor for the Authority, of a dinner meeting for the Authority to be attended by Authority Members and their spouses in recognition of your upcoming 20th anniversary of service as Solicitor for the Authority. Facts: The Washington Township Municipal Authority is organized and existing under the Municipality Authorities Act of 1945, 53 P.S. 5301 et sea. As Solicitor for the Washington Township Municipal Authority, you seek the advice of the State Ethics Commission on behalf of a Member of the Board of that Authority. Your inquiry focuses upon a proposal which you have made to the Authority Board Members arising out of your upcoming 20th anniversary of service as Solicitor for the Board, which anniversary will occur on November 17, 1991. In recognition of this anniversary, you would like to sponsor a dinner meeting for the Authority to be attended by Members of the Authority and their spouses. You state that although you have no enforceable right to continue in your .position as Solicitor for the Authority, you have no reason to expect that the relationship will be discontinued at any time in the future by the Authority. You note that you are not reappointed annually. Ms. Jan G. Sulcove October 15, 1991 Page 2 Based upon all of the above, you request an advisory opinion from this Commission. Discussion: As a Board Member for the Washington Township Municipal Authority, the Board Member on whose behalf you have inquired is a public official as that term is defined under the Ethics Law, and hence the Board Member 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. Ms. Jan G. Sulcove October 15, 1991 Page 3 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. In applying the above provisions of the Ethics Law to the instant matter, it is initially noted that a similar question arose in Greevv, Advice 90 -564, although from the perspective of the Solicitor rather than from the perspective of a public official receiving the entertainment gift, which in this case was a breakfast. In Greevv, supra, it was determined that Section 3(a) of the Ethics Law would not restrict a Solicitor from entertaining Township Supervisors and Township employees at a breakfast where the Solicitor was deemed to be making a gift to the Supervisors and employees. However, that Advice was expressly conditioned upon an assumption that there were no understandings as to the Solicitor's entertainment of these people with periodic breakfasts vis -a -vis his retention as Solicitor, which agreements would be in violation of Sections 3(b) and 3(c) of the Ethics Law. Your inquiry would be factually "on point" with Greevv, supra, but for the fact that you have not inquired with this Commission on your own behalf. Rather, you have inquired on behalf of a Board Member of the Municipal Authority with regard to the Board Member's prospective conduct. Just as the Ethics Law would not prohibit a Solicitor from offering a breakfast or dinner to the public officials on the governmental body the Solicitor serves, conditioned upon there being no understandings which would violate Sections 3(b) and 3(c) of the Ethics Law, similarly the Ethics Law as set forth in Act 9 of 1989 would not prohibit the public official from accepting such a gift based upon the same expressed assumption. However, to the extent the Board Member would receive a gift or gifts from you for which disclosure would be required under Section 5(b)(6) of the Ethics Law, 65 P.S. §405(b)(6), the Board Member would be required to make full disclosure of such gift or gifts on the Board Member's Statement of Financial Interests. Ms. Jan G. Sulcove October 15, 1991 Page 4 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 Municipality Authorities Act. Furthermore, although you have not inquired as to the propriety of your own proposed conduct, it is specifically noted that the applicability of the Rules of Professional Conduct has not been addressed herein. Conclusion: As a Board Member for the Washington Township Municipal Authority, the Board Member is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict the Board Member of the Municipal Authority from accepting as a gift from the Authority's Solicitor, the Solicitor's sponsorship of a dinner meeting for the Authority to be attended by Authority Members and their spouses in celebration of the Solicitor's 20th anniversary of service for the Board. However, this Advice is expressly conditioned upon the assumption that no understanding exists which would violate Section 3(b) and /or 3(c) of the Ethics Law, including but not limited to any understanding as to the Solicitor's provision of such entertainment vis -a -vis the Solicitor's retention. The Board Member would be required to make full disclosure as set forth in Section 5(b)(6) of the Ethics Law set forth above, for any gift or gifts valued in the aggregate at $200.00 or more. 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 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing Ms. Jan G. Sulcove October 15, 1991 Page 5 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. S ncerely, l ' ; ' AA Ar \ to Vincent J. Dopko Chief Counsel