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HomeMy WebLinkAbout92-523Mr. Charles M. Marks, Sr. C.M. Marks, Inc. 2041-A Ewings Mill Road Coraopolis, PA 15108 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 6, 1992 92 - 523 Re: Conflict, Public Official /Employee, Private Employment or Business, Board Member, Municipal Authority, Township, Utility Contractor, Installation of Utilities in the Township. Dear Mr. Marks: 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 board member of a municipal authority of a township with regard to installing utilities in the township in a private capacity as a utility contractor. Facts: Noting a prior telephone conversation with this Commission, you seek an advisory from the State Ethics Commission in your capacity as a Board Member of the Municipal Authority of the Township of Robinson. Your term of office expires December 31, 1992. You have been a utility contraci,or for the past twenty years, and you would like to start installing utilities again. You state that you would not consider taking such action unless you are sure you would not be violating any State Ethics Laws. You state that you were given an opinion that if you followed guidelines set by this Commission you could be eligible to participate in the bidding process. The jobs in question would be in the Township of Robinson. Discussion: As a Board Member of the Municipal Authority of the Township of Robinson, 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. Mr. Charles M. Marks February 6, 1992 Page 2 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 no 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 family is a director, officer, owner, employee or has a financial interest. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of Mr. Charles M. Marks February 6, 1992 Page 3 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 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 been 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 $503 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 Mr. Charles M. Marks February 6, 1992 Page 4 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 emoloyment 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 :,upervisory or overall responsibility as to the implementation or administration of the contract. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activitiA3. (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 Mr. Charles M. Marks February 6, 1992 Page 5 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 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 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 facts which you have submitted, it is initially noted that your request for advice is very general, and so this Advice responding to your inquiry must also be very general. Under Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position 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. We note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he Mr. Charles M. Marks February 6, 1992 Page 6 is associated. Pancoe, Opinion 89 -011. Section 3(a) would also specifically prohibit the use of confidential information received by holding public office /public employment for such a prohibited private pecuniary benefit. A public official /public employee may not use the authority of his public position, or any confidential information received by holding such a position, either as a means of obtaining or advancing an opportunity for business or employment in a private capacity, or as a means of attempting to eliminate any potential competitors who would be competing for such private business opportunities or employment. See Wall, Advice 90 -567 (Citing Pepper, Opinion 87 -008). The Ethics Law would restrict the use of authority of office to obtain any business in a private capacity; any utilization of confidential information gained through public position; and /or participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. In the event that you or your private employer or business would have a matter pending before the Municipal Authority of the Township of Robinson as your governmental body or if you as part of such official duties must participate, review or pass upon such a matter, a conflict would exist. Miller, Opinion 89 -024. In such instances, it would be necessary that you be removed from that process. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever in the matter and to satisfy the disclosure requirements of Section 3(j) set forth above. As for the restrictions of Section 3(f) of the Ethics Law, during your term of office you and /or any business with which you are associated would be required to observe those restrictions for any contracts with the Municipal Authority of the Township of Robinson, where the value of the contract is $500 or more. Upon termination of public service, you would become a "former public official" subject to Section 3(g) of the Public Mr. Charles M. Marks February 6, 1992 Page 7 Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 4. Restricted activities (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5403(g). Section 3(g) would place new restrictions upon you in your future status as a "former public official," which would preclude you from representing a "person" - including but not limited to yourself and any business with which you are associated - before the municipal authority of the Township of Robinson, for promised or actual compensation, for one year following termination of your public service. It is recommended that you seek further advice from this Commission regarding the restrictions of Section 3(g) as they would apply to you based upon your factual circumstances when you leave office. Lastly, 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 Act has not been con3idered in that they do not involve an interpretation of the Ethics Law. However, it is recommended that you seek the advice of legal counsel as to any applicability of the following provision of the Municipality Authorities Act: No member of the Authority or officer or employe thereof shall either directly or indirectly be a party to or be in any manner interested in any contract or agreement with the Authority for any matter, cause or thing whatsoever by reason whereof any liability or indebtedness shall in any way be created against such Authority. If any contract or agreement shall be made in violation of the provisions of this section the same shall be null and void and no action shall be maintained thereon against such Authority. 53 P.S. §312D. Mr. Charles M. Marks February 6, 1992 Page 8 Conclusion: As a Board Member of the Municipal Authority of the Township of Robinson, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity as a utility contractor subject to the restrictions and qualifications noted above. In the event that you and /or your employer /business has matters pending before the Municipal Authority of the Township of Robinson as your governmental body, then you may not participate in such matters and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. The restrictions of Section 3(f) must be fully satisfied where applicable. Upon termination of service with the Municipal Authority of the Township of Robinson, you would become a "former public official" subject to Section 3(g) of the Ethics Law. It is recommend that you seek further advice from this Commission as to the restrictions of Section 3(g) as they would apply to you upon the termination of your public office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. 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 §2.12. Sincerely,.+ Vincent J. Dopko Chief Counsel