HomeMy WebLinkAbout93-512 DiNicolaDavid A. DiNicola
The Municipal Authority of
the Borough of Minersville
Two East Sunbury Street
Minersville, PA 17954
Dear Mr. DiNicola:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 19, 1993
9. GRANTS. If the manager applies for and
successfully obtains grants that are of
economic benefit to the Authority compensation
equal to twenty (20 %) percent of the grant
obtained will be awarded to the manager. For
additional grants received, twenty (20 %)
93 -512
Re: Conflict, Public Official /Employee, Municipal Authority
Manager, Employment Contract, Grants.
This responds to your letter of December 24, 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 authority
manager from entering into a proposed employment contract with the
municipal authority which would provide, inter alia, for additional
compensation based upon grant monies received.
Facts: As the Authority Manager for the Municipal Authority of the
Borough of Minersville ( "Municipal Authority "), you seek an
advisory from the State Ethics Commission. You are presently in
the process of negotiating an employment contract between the
Municipal Authority and yourself. You state that to protect the
Municipal Authority and yourself, you are interested in determining
if anything in the proposed contract is unethical.
You have submitted copies of your resume, the employment
contract, and a cover letter that accompanies the employment
contract, which documents are incorporated herein by reference. It
is noted that Paragraph 9 of the proposed contract provides as
follows:
David A. DiNicola
February 19, 1993
Page 2
percent of the additional amount allowed for
said grants will be paid to the manager for
administering such additional grant programs.
Based upon the above, you request an advisory from the State
Ethics Commission.
Discussion: As the Authority Manager for the Municipal Authority
for the Borough of Minersville ( "Municipal Authority "), 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 Tnember
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 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.
David A. DiNicola
February 19, 1993
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
David A. DiNicola
February 19, 1993
Page 4
minutes or supervisor.
Before applying the above provisions of the Ethics Law to your
inquiry, it is initially noted that this Commission does not have
the statutory jurisdiction to rule upon a governmental body's
wisdom or judgment in decisions as to what ipmpensation
arrangements will be made with public employees. The Commission
has noted its concern that due consideration be given to the
appropriate utilization of tax revenues, in accordance with the
public trust. See, e.g., Means, Opinion 90 -007 at 5-6. Thus, in
this case, the wisdom or judgment of the Municipal Au` ority of the
Borough of Minersville in agreeing to your proposed co ract, which
would appear to enable you to be reimbursed from so ` educational
expenses not directly related to your work but requir for you to
obtain a degree, and for additional awards to you f9r "creative
ideas" for doing a job for which you are already being compensated,
will not be addressed.
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) would prohibit you from using the status to activities
of your employment position, the authority of your em loyment, or
any confidential information received by being in yo position of •
public employment as a means of structuring a compen ion package
which would include funds to which you would no awfully be
entitled.
A concern is noted as to Paragraph 9 of your proposed contract
which provides as follows:
9. GRANTS. If the manager applies for and
successfully obtains grants that are of
economic benefit to the Authority compensation
equal to twenty (20 %) percent of the grant
obtained will be awarded to the manager. FQQr
additional grants received, twenty (20 5)
percent of the additional amount allowed for
said grants will be paid to the manager f r
administering such additional grant program .
Although grant programs may vary, you are cautioned that your above
proposed reward based upon grant money could, in some instances,
violate laws applicable to such grants, including federal laws.
This Commission does not have the statutory authority to
David A. DiNicola
February 19, 1993
Page 5
specifically enforce those other laws. It is strongly recommended
that you seek the advice of legal counsel with regard to Paragraph
9 of your proposed contract as it may involve laws other than the
Ethics Law.
Nevertheless, any use of the authority of your public position
or confidential information received by holding your position for
such a prohibited private pecuniary benefit would constitute a
violation of Section 3(a) of the Ethics Law as well.
The Commission has had prior occasions to rule upon conduct
which constituted "self- dealing" by public officials /public
employees . with regard to grant monies. See, Rohrer,, Order No. 833;
Braszo, Order No. 630 -R; and Little, Order No. 632. Specifically
in Little, supra, a borough council person was found in violation
of Section 3(a) of the Ethics Law when he voted in favor of
expending borough funds to satisfy a HUD requirement regarding an
ineligible grant which he received.
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 Borough Code.
Conclusion: As the Authority Manager for the Municipal Authority
for the Borough of Minersville, you are a public employee subject
to the provisions of the Ethics Law. Subject to the conditions,
qualifications and restrictions noted above, the Ethics Law would
not prohibit you from entering into the proposed employment
contract with the Municipal Authority for the Borough of
Minersville. You are specifically advised that at least in some
instances, your acceptance of compensation based upon grant monies
received may violate other laws, in which case such would
constitute a violation of Section 3(a) of Ethics Law as well.
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
David A. DiNicola
February 19, 1993
Page 6
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.
cerely,
Vincent F . Dopko
Chief Counsel