HomeMy WebLinkAbout93-628 ColeDear Mr. Cole:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1 610
ADVICE OF COUNSEL
December 30, 1993
Thomas P. Cole, II, Esquire 93 -628
15 East Otterman Street
Greensburg, PA 15608 -2591
Re: Conflict, Public Official /Employee, Municipal Solicitor,
Entertainment, Christmas Dinner, Summer Activities, Township
Commissioners.
This responds to your letter of November 23, 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 municipal solicitor
with regard to providing a Christmas dinner or summer luncheons for
the township board of commissioners.
Facts: You are Solicitor for North Huntingdon Township,
Westmoreland County. The Board of Commissioners adopted Resolution
126 of 1993 on October 20, 1993, limiting the receipt of gifts,
loans, services, gratuities, or other favors by the Commissioners
from third parties to $75.00. You are considering holding a
Christmas dinner or summer outings of golf with lunch or dinner for
the Commissioners and their spouses which would not exceed $75.00
for any individual Commissioner. These functions would be strictly
social in nature and no deliberations or discussions concerning
official Township business would occur. You indicate that these
social functions would be beneficial in allowing the Commissioners
to interact on a level different from the normal daily routine and
to discuss general matters affecting municipalities in
Pennsylvania.
You have submitted a copy of Resolution 126 for review and
that document is incorporated herein by reference.
Based upon the above, you request an advisory from the State
Ethics Commission regarding the applicability of the Ethics Law to
these proposed activities.
Thomas P. Cole, II, Esquire
December 30, 1993
Page 2
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. SS407(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 material
facts relevant to the inquiry. 65 P.S. SS407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As Solicitor for North Huntingdon Township, 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
Thomas P. Cole, II, Esquire
December 30, 1993
Page 3
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.
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 noted that a similar question arose in Greevy, Advice
90 -564. In Greevy, it was determined that Section 3(a) of the
Ethics Law would not restrict or prohibit 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 the 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 Greevy, 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 or prohibit
you from providing municipal public officials and public employees
with a Christmas party or summer outings. In so doing, you would
be making a gift to the officials and employees to the extent of
the cost of the events. The Ethics Law would not prohibit you from
making these gifts. See, Gigliotti, 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
Thomas P. Cole, I1, Esquire
December 30, 1993
Page 4
particular the public officials, with a Christmas party or summer
outings vis -a -vis your retention as Solicitor. Confidential
Opinion, 89 -029.
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 First Class Township Code or the
Rules of Professional Conduct.
Conclusion: As Solicitor for North Huntingdon Township,
Westmoreland County, 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 and
summer outings for the Township public officials, employees and
spouses. This Advice is conditioned upon the express assumption
that there are no understandings which would transgress Sections
3(b) and /or 3(c) 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within fifteen (15) days of the date of
this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 -787- 0806).
Vincent J. Dopko
Chief Counsel