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HomeMy WebLinkAbout94-512 MorrowDavid H. Morrow 1298 Saxonburg Blvd. Glenshaw, PA 15116 Dear Mr. Morrow: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. 80X 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1994 94 -512 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Vote, Immediate Family, Spouse, Business with which Associated, Solicitor's Law Firm. This responds to your letter of January 17, 1994 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 township supervisor with regard to matters affecting the solicitor where the supervisor's spouse is employed by the solicitor's law firm in an administrative capacity. Facts: You are a newly elected supervisor for Indiana Township near Pittsburgh. Your wife is employed in an administrative capacity for the law firm of Eckert, Seamans, Cherrin & Mellott. The Solicitor of Indiana Township, Thomas Snyder, is also employed by the same law firm. Mr. Snyder has indicated that your wife's employment is not contingent upon his reappointment as solicitor, there is no contact between your wife and Mr. Snyder and no incentive based compensation is received by your wife. At the reorganizational meeting, you abstained from voting to reappoint Mr. Snyder as Solicitor. Based upon the above, you request an advisory addressing restrictions and prohibitions upon you as a supervisor. You indicate that some individuals have suggested that approving the solicitor's invoices and taking action based upon his recommendations constitute conflicts of interest. Discussion: It is initially noted that pursuant to Sections 7(10) Morrow, David H., 94 -512 February 10, 1994 Page 2 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. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Indiana Township, 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 Morrow, David H., 94 -512 February 10, 1994 Page 3 particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 Morrow, David H., 94 -512 February 10, 1994 Page 4 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. 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, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or 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 with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. Morrow, David H., 94 -512 February 10, 1994 Page 5 (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. 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. You are further advised that 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. ee, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular Morrow, David H., 94 -512 February 10, 1994 Page 6 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 or a member of his immediate family is associated. In applying the above provisions of the Ethics Law to your present inquiry, Section 3(a) of the Ethics Law prohibits public officials from using the authority of public office for the private pecuniary benefit of the public official himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Your wife is a member of your immediate family, as set forth above. The law firm where your wife is employed is a business with which a member of your immediate family is associated. Thus, conflicts of interest would arise where the use of authority would result in private pecuniary benefit to a business with which a member of your immediate family is associated, in this case, the law firm where your wife is employed. You would have a conflict of interest in any matter before the Township relating to the selection or compensation of the Solicitor, including approving contested, non - routine invoices. Parenthetically, it is noted that in Krushinski, Order 168, the Commission held that a public official who voted to approve invoices of a business with which he was associated did not contravene the Ethics Law where the invoices were routine, not subject to dispute or adjustment and related to items for which there were pre -set costs. 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 clients, while in his capacity as a public official, his primary duty is to act in the best interest of the governmental body. The Commission in 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. You would not have a conflict as to acting on,the Solicitor's recommendations, however, unless such actions create a private pecuniary benefit to yourself, a member of your immediate family or a business which you or a member of your immediate family is Morrow, David H., 94 -512 February 10, 1994 Page 7 associated. For example, voting to approve various legal actions whereby the Solicitor would receive additional compensation would create a private pecuniary benefit to a business with which your wife is associated and would be prohibited. 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 Township Code. Conclusion: As a Supervisor for Indiana Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, you would have a conflict of interest as to any matter before the Township relating to the Solicitor or his law firm which employs your wife. In each instance of a conflict of interest, you would be required to abstain and must satisfy the disclosure requirement of Section 3(j) of the Ethics Law as outlined above. You would not be prohibited from acting on the recommendations of the Solicitor as long as the actions do not create conflicts of interest. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant for 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 §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). cerely, Vincent ). Dopko Chief Counsel