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HomeMy WebLinkAbout93-510 DaddonaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 - 1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 11, 1993 Honorable Joseph S. Daddona 93 -510 City of Allentown 435 Hamilton Street Allentown, PA 18101 -1699 Re: Conflict, Public Official /Employee, City, Mayor, Private Employment or Business, Talk Show Host. Dear Mayor Daddona: This responds to your letters of December 18, 1992, December 30, 1992, and January 15, 1993 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law prohibits or restricts a city mayor from being employed by or associated with a business /person in a private capacity-in addition to public service. Facts: As Mayor for the City of Allentown, you seek an advisory from the State Ethics Commission. You have announced that you will not be seeking, nor would you accept the nomination of your party as a candidate for, re- election to the Office of Mayor of Allentown in 1993. You have one year remaining in your term as Mayor. You state that although you expect to devote the overwhelming majority of your time to continuing your responsibilities and duties as the City's Chief Executive, you must begin preparing for a new career as a private citizen when you leave office on January 3, 1994. You have had several proposals which would give you an opportunity to work part -time in the electronic media industry in Allentown. In particular, there is an Allentown -based radio station and a local television station where the possibility exists for you to serve as a host of a talk show, accepting listeners' phone calls and talking about various issues of the day as well as peoples' problems and concerns. Your initial letter of inquiry stated that your compensation for this part -time position would be a commission based on the amount of air time that is sold by the station for commercial spots Joseph S. Daddona February 11, 1993 Page 2 during the program. Commission compensation would be one level if the station sells and produces the commercial spots and a slightly higher level if you were involved in selling and /or producing the commercial spots. However, your subsequent letter of December 30, 1992 clarified that you will not be engaged in any sales of advertising time for your radio talk show or any other program on the radio station. Therefore, you will only receive one level of compensation based strictly on the total amount of air -time commercials sold by the station. You represent and assure this Commission that you will accept no compensation either directly or indirectly for any commercials which advertise any firm that has any business pending before the City in which you would have any influence or decision - making role as Mayor. You would continue devoting a minimum of 40 -50 hours per week to your responsibility as Mayor. You estimate that the maximum time you would spend on these private, part -time responsibilities would not exceed 8 -10 hours per week. You also state that the time you would be devoting to the part -time job with the Allentown radio station would be a maximum of one and one -half hours per day, five days per week. You state that having recognized that there is a potential for at least an appearance of a conflict of interest in fulfilling this part -time responsibility as related to your full -time duties, authorities and responsibilities as Mayor, you have prepared a contractual agreement with the stations that spells out in detail the terms of your appointment and your strict avoidance of accepting any compensation either directly or indirectly that could be construed as a possible conflict of interest with your job as Mayor. You have submitted a copy of the said contractual agreement which document is incorporated herein by reference. You state that to the best of your knowledge, the City of Allentown conducts no official business and does not purchase any services from either the radio station or the television station. You further state that to the best of your knowledge, neither station has on file with the City any requests for permits, tax assessment appeals, or any other action over which you would have any official jurisdiction. You assure this Commission that if such action would ever arise, you would remove yourself from any influence or decision - making role in such action while employed by either station. You ask whether your proposed acceptance of this part -time work during your last year in office as Mayor would be restricted or prohibited by the Ethics Law. You have sent a similar inquiry to the Allentown Code of Ethics Board and you have submitted a copy of that Board's opinion, which document is incorporated herein by reference. It is noted that the City's Board found no violation of the City's Code of Ethics arising out of your proposed part -time Joseph S. Daddona February 11, 1993 Page 3 position, but stated that: 1. You should not be involved in selling commercial spots, so as to avoid further demands on your time as well as any implication that the proposed advertiser would receive any favor from you or the City as a result of his sponsoring your program; and 2. You should not read any of the advertisements, so as to avoid any implication that the Mayor or the City endorses any particular firm, product or service. Letter Opinion of the Board of Ethics of the City of Allentown, dated December 30, 1992. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: As Mayor for the City of Allentown, 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: 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 Joseph S. Daddona February 11, 1993 Page 4 immediate family is. associated. "Authority of office or employment." The actual power provided bylaw, 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. 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 $500 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 administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction Joseph S. Daddona February 11, 1993 Page 5 if the suit is Commenced within 90 days of the making of the contract or subcontract. Given your representation that your prospective employer does not do business with the City, Section 3(f) will not be discussed further. Should you determine that contracting situations do exist, you may seek further advice from this Commission in this regard. 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 minutes or supervisor. Joseph S. Daddona February 11, 1993 Page 6 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 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 is associated. Pancoe, Opinion 89 -011. A radio station or television station which would employ you part -time would by definition be a business with which you are associated. 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/ public employee could not perform private business on government time. Although the Ethics Law does not set the number of hours which a city mayor must work, the mayor must actually work the amount of time for which he is compensated. See, Confidential Opinion 91 -001. A public official /public 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. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office / employment for such a prohibited private pecuniary benefit. Furthermore, the public official /public employee could not use the authority of office to obtain any business in a private capacity. The public official /public employee could not during government working hours, solicit or promote such private business activity. Pancoe, supra. In the event that a private employer or its client /commercial sponsor would have a matter pending before the City of Allentown or if you as part of your official duties must participate, review or pass upon such a matter, a conflict would exist. Miller, Opinion 89 -024. In each instance of a conflict of interest, it will be necessary that you be removed from that process. You may not participate in discussions, review, or recommendations on matters which relate to the business /private employer or its clients/ commercial sponsors which may come before the governmental body. In each instance of a conflict of interest, you must also fully Joseph S. Daddona February 11, 1993 Page 7 satisfy the disclosure requirements of Section 3(j) as set forth above. 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 respective municipal code and /or the Code of Ethics for the City of Allentown. Conclusion: As Mayor for the City of Allentown, Pennsylvania, 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 subject to the restrictions and qualifications as noted above. In the event that the employer/ business has matters pending before your governmental body, then you may not participate in that matter and the disclosure requirements of Section 3(j) of the•Ethics Law as outlined above must be satisfied. 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 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