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HomeMy WebLinkAbout92-521STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 3, 1992 Mr. Daryl R. Moyer Bear, Antanavage & Moyer 92 -521 64 N. Fourth Street Hamburg, PA 19526 Re: Conflict, Public Official /Employee, Borough, Council Member, Attorney, Law Firm, Municipal Clients. Dear Mr. Moyer: This responds to your letter of December 12, 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 borough council member who is also an attorney and partner in a private law firm, where the firm acts as solicitor to a neighboring municipality and its sewage authority and represents an industrial park located in another neighboring municipality, all of which entities may have negotiations with the borough's municipal authority and /or the borough council. Facts: You initially submitted a letter of inquiry dated November 19, 1991, in which you requested advice as to numerous issues beyond the jurisdiction of this Commission. By letter dated November 22, 1991, this Commission informed you that it would not have jurisdiction over you in your capacity as an attorney engaged in the private practice of law and suggested that any questions in that regard be directed to the Ethics Committee of the Pennsylvania Bar Association. It was additionally requested that in submitting a letter of request to this Commission, you only raise issues regarding your official capacities, as a Borough Council Member and Solicitor. You submitted a new letter of inquiry dated December 12, 1991, in which you inquired only as to your public capacities. The facts which you submitted in your prior letter will only be set forth to the extent that they pertain to the relevant issues, which involve your public positions. Mr. Daryl R. Moyer February 3, 1992 Page 2 You were recently elected to the Borough Council of the Borough of Hamburg, Berks County, Pennsylvania, which has approximately 4,000 residents. You are also an attorney practicing law in the Borough of Hamburg. Your law firm is Solicitor to the Hamburg Area School District, the Board of Supervisors of Windsor Township, and the Windsor Township Municipal Authority. Your partner handles most matters for the School District. You primarily attend the meetings and functions of the Board of Supervisors of Windsor Township and the Windsor Township Municipal Authority. Windsor Township is adjacent to the Borough of Hamburg and lies directly east of the Borough of Hamburg. The Windsor Township Municipal Authority has sewage collection lines throughout Windsor Township and these lines then feed into the Hamburg Borough where the sewage is treated at the Hamburg Municipal Authority Sewage Treatment Plant. The Hamburg Municipal Authority is not an operating authority, and the operation of the sewage plant is by the Borough. There have been, and you anticipate that in the future there will be, negotiations between the Windsor Township Municipal Authority and the Hamburg Municipal Authority concerning the usage and flow of sewage from Windsor Township into the Hamburg Plant. In all likelihood, you will be representing the neighboring municipality, the Windsor Township Municipal Authority, in these negotiations with the Hamburg Municipal Authority. With regard to the above facts, you specifically inquire as to whether there would be a conflict of interest if the negotiations are simply between the Windsor Township Municipal' Authority and the Hamburg Municipal Authority. You further ask if there would be a conflict of interest if the negotiations are between the Windsor Township Municipal Authority, the Hamburg Municipal Authority and the Borough of Hamburg. In addition, your partner represents an industrial park located in another neighboring municipality located to the west of Hamburg. This municipality and the industrial park are presently negotiating with the Borough of Hamburg and the Hamburg Municipal Authority to secure treatment of sewage at the Hamburg Municipal Authority Sewage Treatment Plant. You specifically inquire as to whether there would be a conflict of interest if the negotiations are simply between the neighboring municipality, the Borough of Hamburg and the Hamburg Municipal Authority. You acknowledge that it would appear that any successful negotiations by the neighboring township in obtaining treatment of sewage at the Hamburg Treatment Plant would benefit your partner's client. However, you also note that it would appear that the negotiation for this benefit to your partner's clientimay be by the Mr. Daryl R. Moyer February 3, 1992 Page 3 neighboring municipality and not by your partner's client directly. You further inquire as to whether there would be a conflict of interest assuming that all negotiations;,are between the various municipal authorities and do not iivolve the Borough directly. If this would not be found to be a conflict, you ask whether the ratification of the negotiations or any agreement by and between the neighboring municipal authorities or municipalities and the Hamburg Municipal Authority by the Borough Council would create a conflict of interest. Discussion: It is initially noted that this Advice may address your prospective conduct only. To the extent there has been past conduct, you are advised that such past conduct is beyond the scope of an advisory and may not be addressed herein. As a Borough Council Member for the Borough of Hamburg, you will, upon entering office, become a public official as that term is defined under the Ethics Law, and hence you will be subject to the provisions of that law. In your variois capacities as Solicitor you are a public employee as that term is defined under the Ethics Law, and thus in those capacities you are already subject to the. Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. See also, Spataro, Opinion 89 -009 at 4; Maunus v. Com., State Ethics Commission, 544 A. 2d 1324, 1326 (1988). 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 Mr. Daryl R. Moyer February 3, 1992 Page 4 "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 of 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 familytis a director, officer, owner, employse or has a financial interest. "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. 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 anything 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(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 Mr. Daryl R. Moyer February 3, 1992 Page 5 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 governing body of a political subdivision, where one member has abstained fr 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 and to publicly disclose the abstention and the reasons for same, both orally and by filing 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 issues which you have raised, Section 3(a), the Ethics Law, which pertains to conflicts of interest, prohibits a public official /employee from using the authority of public office /employment for the private pecuniary benefit of himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. It is parenthetically noted that there are certain enumerated exceptions to the definition of "conflict" or "conflict of interest," set forth above. The submitted facts have not indicated any such exceptional circumstances and so this Advice assumes that there are none. Mr. Daryl R. Moyer February 3, 1992 Page 6 Your specific inquiries are addressed seriatim, as follows: With regard to negotiations between the Windsor Township Municipal Authority and the Hamburg Municipal Authority, you would not have a conflict of interest if the negotiations are simply between these municipal authorities. As a Borough Council Member, your governmental body is the Borough Council for the Borough of Hamburg - it is not the Haiaburg Municipal Authority. Thus, if the Borough Council is not involved in the negotiations, your participation in the negotiations would not constitute a use of authority of office as a Borough Council Member. You would be acting on behalf of only one governmental body, and could properly use the authority of your public employment as Solicitor to the Windsor Township Municipal Authority in participating in the negotiations. This Advice, however, is subject to the express condition that you would not otherwise contravene Section 3(a) of the Ethics Law, which would prohibit the use of the authority of your office as a Borough Council Member or any confidential information received by holding that position for the private pecuniary benefit of yourself, your law firm, and/or its clients. See, Miller, Opinion 89 -024. Since the Borough itself actually operates the sewage plant, rather than the Hamburg Municipal Authority, a concern is noted that you may have access to confidential information which, if used or disclosed, would result in a prohibited private pecuniary benefit. Such conduct would transgress the Ethics Law and would be strictly prohibited. Under the second scenario which you have posed, the negotiations would be between the Windsor Township Municipal Authority, the Hamburg Municipal Authority and the Borough of Hamburg. Under these circumstances, you would have a conflict of interest. In your capacity as Solicitor to the Windsor Township Municipal Authority, your duty would be to that Authority, while in your capacity as a Borough Council Member, your duty would be to that governmental body. Thus, in each capacity you would have a conflict of interest which would requirekthat you abstain from any participation of any nature whatsoever in the matter and that you comply with the disclosure requirements of Section 3(j) as set forth above. Your third inquiry poses the scenario of your partner representing an industrial park located in another neighboring municipality, with the municipality and the industrial park presently negotiating with the Borough of Hamburg and the Hamburg Municipal Authority to secure treatment of sewage at the Hamburg Treatment Plant. You ask whether there would be a conflict of Mr. Daryl R. Moyer February 3, 1992 Page 7 interest if the negotiations are simply between the neighboring municipality, the Borough of Hamburg and the Hamburg Municipal Authority. Thus, you pose a hypothetical where the industrial park would no longer be directly taking part in the negotiations. There would be a conflict of interest under these circumstances. Your law firm is a business with which you are associated. You characterize the industrial park as your partner's client, but for purposes of the Ethics Law, the industrial park is the client of your law firm. A public official may not use the authority of office or confidential information received by holding public office for the private pecuniary benefit of himself, a business with which he is associated, and /or its clients. Miller, Opinion 89 -024. Your participation in the matter would be the nexus to the acknowledged private pecuniary benefit to your client, the industrial park, whether or not it was directly involved in the negotiations. Your fourth specific inquiry asks the Commission to assume that all negotiations would be between thelvarious municipal authorities and would not involve the Borough directly. Based upon your assumption that this would not be found to be a conflict, you ask whether the Borough Council's ratification of the negotiations or any agreement by and between the neighboring municipal authorities or municipalities and the Hamburg Municipal Authority would create a conflict of interest under the Ethics Law. This question poses no substantive difference from your prior inquiries which included your involvement as a Borough Council Member; it merely changes the time at which you would become involved. In ratifying . the negotiations or any agreement, you would have a conflict of interest because you would be using the authority of office as a Borough Council Member for a resultant private pecuniary benefit for yourself, your law firm, and /or its clients. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) as set forth above would have to be observed. 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 Rules of Professional Conduct, although it has been previously suggested to you that you direct any questions regarding your responsibilities and obligations under those Rules to the Ethics Committee of the Pennsylvania Bar Association. Mr. Daryl R. Moyer February 3, 1992 Page 8 Conclusion: As a Borough Council Member for the Borough of Hamburg, you will upon assuming office become a public official subject to the provisions of the Ethics Law. In your various capacities as Solicitor you are a public employee subject to the provisions of the Ethics Law. You would not have a conflict of interest in acting as Solicitor to the Windsor Township Municipal Authority in negotiations between that Authority and the Hamburg Municipal Authority, subject to the express conditions, qualifications and restrictions noted above. You would have a conflict of interest as to negotiations between the Borough of Hamburg, the Windsor Township Municipal Authority, and the Hamburg Municipal Authority. You would have a conflict of interest as to negotiations between the Borough of Hamburg, the Hamburg Municipal Authority, and a neighboring municipality to secure sewage treatment at the Hamburg sewage treatment plant, where your law firm represents an industrial park located in the neighboring municipality. You would have a conflict of interest in the Borough's ratification of negotiations or any agreement by and between the above neighboring municipal authorities or municipalities and the Hamburg Municipal Authority. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) must be observed. 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 Adyice 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 §2.12. tN-c0(\ Vincent J. Dopko Chief Counsel