HomeMy WebLinkAbout93-602 MunleyRobert J. Munley
115 1st Street
Blakely, PA 18447
Dear Mr. Munley:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 1 1470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 17, 1993
93 -602
Re: Conflict, Public Official /Employee, Borough Council Member,
Use of Authority of Office or Confidential Information, Law
Student /Law Clerk, Private Employment with Borough Solicitor.
This responds to your letter of August 26, 1993 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 Borough Council
Member from accepting employment and serving as a law clerk with
the Borough Solicitor's law firm.
Facts: You are a Member and Vice President of the Blakely Borough
Council. In addition, you are attending law school. You have been
offered a position as a part -time law clerk with the law firm that
serves as Solicitor for the Borough. It is noted that you
initiated the contact with the Solicitor's firm regarding
employment. The Solicitor was retained by the Borough prior to the
time you became a Member of the Borough Council. Based upon the
above, you request advice as to whether you may accept the
employment position and if so, what restrictions under the State
Ethics Law would apply to you while serving as a Borough Council
Member and as a law clerk for the Borough Solicitor's law firm.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. §S407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the materials
Munley, 93 -602
September 17, 1993
Page 2
facts relevant to the inquiry. 65 P.S. S §407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
It is further noted that your request for advice may only be
addressed with regard to prospective conduct. A reading of
Sections 7(10) and 7(11) of the Ethics Law makes it clear that an
opinion or advice may be given only as to prospective (future)
conduct. If the activity in question has already occurred, the
Commission may not issue an opinion or advice but any person may
then submit a signed and sworn complaint which will be investigated
by the Commission if there are allegations of Ethics Law violations
by a person who is subject to the Ethics Law.
As Council Member for Blakely Borough, 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
Munley, 93 -602
September 17, 1993
Page 3
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.
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
Munley, 93 -602
September 17, 1993
Page 4
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.
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.
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.
Although Section 3(a) of the Ethics Law would not preclude you from
being considered or hired for the position of law clerk for the
Borough Solicitor while you are a Member of the Borough Council,
Section 3(a) would prohibit you from using confidential information
or the authority of office to advance your own selection or to
eliminate any competitors for that position.
Thus, although you may apply for that position and submit your
resume and present qualifications in an interview pursuant thereto
while a Member of Borough Council, you could not use the authority
of your public office as a means in whole or part to promote your
employment or conversely to eliminate any competitors for the
position. Pepper, Opinion No. 87 -008. Subject to the
qualifications as noted above, Section 3(a) of the Ethics Law would
not prohibit your prospective employment as a law clerk with the
law office of the Borough Solicitor.
Munley, 93 -602
September 17, 1993
Page 5
In applying the above provisions of the Ethics Law to the
issue of serving as a Council Member and a law clerk, the
prohibitions pursuant to Section 3(a) regarding use of authority of
office, as stated above, are equally applicable. The use of
authority of office is more than the mere mechanics of voting and
encompasses all of the tasks needed to perform the functions of a
given position. See, Juliante, Order No. 809. Use of authority of
office includes discussing, conferring with others, lobbying for a
particular result and /or any other use of the authority of office
in which the result would be a private pecuniary benefit to a
business with which a public official is associated. In this case,
the business with which you would be associated is the Solicitor's
law firm.
Thus, conflicts of interest would arise where the use of
authority of office would result in a private pecuniary benefit to
the law firm. You would have a conflict of interest in any matter
before the Borough involving a person represented by any member of
the Solicitor's law firm, in any matter involving an employee of
that firm and in any matter involving the Solicitor, including the
retention and compensation of the Solicitor. This Advice is based
on established Commission precedent as set forth in Miller, Opinion
89 -024, and Kannebecker, Opinion 92 -010. In Miller, it was held
that matters which came before a public official involving his
private business or private clients place that public official in
a situation where he is faced with conflicting interests. In his
private capacity, a duty is owed to his private employer or private
clients, while in his capacity as a public official, his primary
duty is to act in the best interest of the governmental body.
Kannebecker held that a public official had a conflict as to
individuals who had matters pending before the township when the
public official was an attorney for those individuals in unrelated
matters.
In each instance of a conflict of interest, you would be
required to abstain from any participation of any nature and to
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 Borough Code.
Conclusion: As a Council Member for Blakely Borough, you are a
public official subject to the provisions of the Ethics Law.
Although Section 3(a) of the Ethics Law would not preclude you from
being considered or hired for the position of law clerk for the
such.
Munley, 93 -602
September 17, 1993
Page 6
Solicitor's law firm, Section 3(a) would prohibit you from using
the authority of office or confidential information as a means of
promoting such prospective employment or eliminating competitors.
You would have a conflict of interest as to matters before the
Borough involving any person who is represented by a member of the
Solicitor's law firm, any person employed by the law firm and the
Solicitor. In each instance of a conflict of interest; you would
be required to abstain and satisfy the disclosure requirements of
Section 3(j) of the Ethics Law as outlined above. Lastly, the
propriety of the proposed conduct has only been addressed under the
Ethics Law.
Pursu nt 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
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 writincr and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S13.2(h).
cerely,
Vincent \T. Dopko
Chief Counsel