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HomeMy WebLinkAbout93-588 MinnichRobert A. Minnich York County Commissioner County Administrative Offices One West Marketway, 4th Floor York, PA 17401 Dear Mr. Minnich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 2, 1993 93 -588 Re: Conflict, Public Official /Employee, County Commissioner, Private Employment or Business, Board of Directors, Shadowfax Corporation, Not - For - Profit Organization. This responds to your letter of July 20, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a County Commissioner is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You have been a York County Commissioner since January, 1992. In April or May, 1992, you visited an organization called Shadowfax. Shadowfax is a not - for - profit corporation which provides educational and training programs, limited industrial work opportunities, and residential group housing for mentally-retarded citizens. Subsequently, you were invited to serve on the Board of Directors of Shadowfax. You do not receive any compensation for serving on this Board. Shadowfax Corporation currently contracts with the York Adams Mental Health- Mental Retardation /Drug and Alcohol Unit in an amount in excess of $3.4 million. After you accepted the appointment to the Board of Directors of Shadowfax, it was suggested that a conflict of interest may exist in light of the contract mentioned above. You state that your main concern is the potential loss of contracts between Shadowfax and York County should an impermissible conflict of interest exist which prohibits you from serving on the Board of Directors while also serving as a County Commissioner. August 2, 1993 Page 2 Based upon the above, you request an advisory from the State Ethics Commission as to your ability to continue to serve as a member of the Board of Directors of Shadowfax Corporation. Discussion: As Commissioner for York County, 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 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 partnership, enterprise, organization, ." Any corporation, sole proprietorship, firm, franchise, association, self - employed individual, August 2, 1993 Page 3 holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. Contracting restrictions as to public officials/ employees are provided in Section 3(f) of the Ethics Law as follows: 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 if the suit is commenced within 90 days of the making of the contract or subcontract. 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, August 2, 1993 Page 4 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. 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. In applying the above provisions of the Ethics Law to the instant matter, 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 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 August 2, 1993 Page 5 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. 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. In the event that your private employer or business, Shadowfax, has a matter pending before your governmental body or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89- 024. In those instances, it will be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Accordingly, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. In applying the provisions of the Ethics Law to the issue of the contract between Shadowfax and York County, you would not be prohibited from entering into a private business arrangement with York County under Section 3(a) of the Ethics Law, but you could not perform your private business using governmental facilities or personnel. August 2, 1993 Page 6 As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee, spouse, child or business with which associated would contract with his governmental body. The term governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. Under the above quoted definition, it is clear that the governmental body with which you are associated is York County and would include York Adams Mental Health - Mental Retardation /Drug and Alcohol Unit. Accordingly, under Section 3(f) of the Ethics Law, any contract that you or the business with which you are associated, would negotiate with the governmental body would have to be awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of sub - contracts. Thus, if the governmental body with which you are associated entered into a contract with a given individual or entity who in turn sought to enter into a sub - contract with you, or the business with which you are associated, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if you or the business with which you are associated enters into such a contract or sub - contract after complying with the restrictions of Section 3(f), you would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting to be allowed under the Ethics Law, strict compliance with the provisions of Section 3(f) of the Ethics Law as outlined above must be followed. Unless the restrictions of Section 3(f) of the Ethics Law are complied with, such contracting would be prohibited. 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 August 2, 1993 Page 7 or more. This open and public process would require: (1) prior public notice of the employment 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 supervisory or overall responsibility as to the implementation or administration of the contract. 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 County Code. Conclusion: As a Commissioner for York County, 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 could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. Where contracting is allowable, the restrictions of Section 3(f) outlined above must be followed. 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 August 2, 1993 Page 8 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 513.2(h). 1 cere_ly, 1 Vincent J. Dopko Chief Counsel