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HomeMy WebLinkAbout92-651Kenelm L. Shirk, III, Esquire R.L. Shirk Law Offices 501 West Main Street Ephrata, PA 17522 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1992 92 -651 Re: Conflict, Public Official /Employee, Municipal Solicitor, Entertainment, Christmas Party. Dear Mr. Shirk: This responds to your letter of October 28, 1992, 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 municipal solicitor with regard to providing a Christmas party for municipal public officials and public employees. Facts: You state that as a municipal Solicitor, you are allowed to charge whatever fair and reasonable rate of charge for your services you can negotiate with your respective municipal clients. You indicate that you intend to charge a retainer plus an hourly rate for work performed. You state that this proposal is for a long standing municipal client. You propose to use a substantial amount of the retainer, at your discretion, for the purposes of providing an annual Christmas party for all employees and officials of the municipality. The employees and officials of the municipality would be invited to the Christmas party along with their "significant others," with the cost not to exceed $25.00 per person. You state that the purpose of the party is not to influence anybody in particular or to acquire any municipal service, but to express your appreciation for the cooperation and help of the many municipal officials and employees with whom you must deal. It would include zoning hearing board members, planning commission members, park and recreation commission members, supervisors, road crew, office staff, and the like. Kenelm L. Shirk, III, Esquire December 8, 1992 Page 2 Based upon the above, you request an advisory from this Commission. Discussion: As a municipal Solicitor, you are a public employee 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 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. Kenelm L. Shirk, III, Esquire December 8, 1992 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 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(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 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 reasons for same, both orally and by filing a written memorandum to that effect with the person recording the Kenelm L. Shirk, III, Esquire December 8, 1992 Page 4 minutes or supervisor. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to 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 the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. It is initially noted that a similar question arose in Greevv, Advice 90 -564. 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. The analysis of Greevv, which was based upon the Commission's decision in Confidential Opinion, 89 -029, would equally apply in this case. Section 3(a) of the Ethics Law would not restrict you from providing municipal public officials and public employees with a Christmas party. In so doing, you would be making a gift to the officials and employees to the extent of the cost of the party. The Ethics Law would not prohibit you from making these gifts. See, Gialiotti, Opinion 89 -020. As to Sections 3(b) and 3(c) of the Ethics Law referenced above, it is expressly assumed for purposes of this Advice that no understanding would exist as to your providing these people, in particular the public officials, with a Christmas party vis -a -vis your retention as Solicitor. Confidential Opinion, 89 -029. Finally, you should be aware that Section 4(a) of the current Ethics Law requires that persons who are full - time or part - time solicitors for political subdivisions are required to file the Statement of Financial Interests. 65 P.S. §404(a). Therefore, on or before May 1 of each year you serve in a given solicitorship, and the year after leaving such position, you are required to file a Statement of Financial Interests for the preceding calendar year. Powell, Opinion 89 -025. 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 Kenelm L. Shirk, III, Esquire December 8, 1992 Page 5 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 or the respective municipal codes. Conclusion: As a municipal Solicitor, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you as Solicitor from providing a Christmas party for the municipal public officials, public employees, and their "significant others." This Advice is conditioned upon the assumption that no understanding(s) would exist which would trangress Section 3(b) and /or Section 3(c) of the Ethics Law. You are required to file Statements of Financial Interests in accordance with Section 4(a) of the Ethics Law. 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 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 S2.12. Sincerely, 0 Vincent J. Dopko Chief Counsel