HomeMy WebLinkAbout94-531 HessSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783.1810
ADVICE OF COUNSEL
March 21, 1994
Parley E. Hess, Jr.
Pine Street Design
Consulting Engineers & Planners
114 Pine Street 94 -531
Oxford, PA 19363
Re: Conflict, Public Official /Employee, Borough Council Member,
Former Borough Planning Commission Member, Private Employment
or Business, Involvement in Land Development Projects,
Representation of Clients before Council and Planning
Commission.
Dear Mr. Hess:
This responds to your letter of February 19, 1994, in which
you requested advice from the State Ethics Commission.
Issue: Whether a Borough Council Member 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 are a Member of Borough Council and a former Member of
the Borough Planning Commission. You are also an engineer by
profession. You request an advisory as to a potential conflict of
interest.
In 1990, you were appointed to the Planning Commission. A
subsequent telephone conference with Assistant Counsel confirmed
that the Planning Commission on which you served is strictly
advisory. The Commission advises the Borough Council and Council,
after taking into consideration the recommendations of the Planning
Commission, as well as the comments of others, including the
general public, makes the final decisions.
At the time of your appointment to the Planning Commission,
you were involved in various land development projects for yourself
and for your private clients. You continued to represent these
clients while serving on the Planning Commission. You would
Hess, Parley E., Jr., 94 -531
March 21, 1994
Page 2
announce your involvement with projects at each meeting and abstain
from voting. This year, a new member of the Planning Commission
told you that you would not be allowed to participate in any way in
discussions concerning the projects with which you are involved.
You subsequently resigned from the Commission.
In January 1994, you took office as a Member of the Borough
Council after being elected in the previous November election. As
a Member of Council, you have announced your involvement in any
project that you are associated with and have abstained from any
vote or Council discussions on these matters. You state that you
continue to represent clients before Borough Council.
You then present six specific inquiries:
1) As a Member of the Planning Commission, may you
represent clients before the Commission?
2) As a former Member of the Planning Commission, may
you represent clients before the Commission?
3) As a private citizen, may you represent yourself
before the Commission on matters with which you are
directly involved?
4) As a Member of Council,
before Council?
5) As a Member of Council,
before Council?
6)
may you represent clients
may you represent yourself
If you may not represent clients directly, may you
be present and provide technical information
concerning projects?
Based upon the above, you request an advisory from the State
Ethics Commission.
Discussion: As It Member of Borough Council, 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.
Hess, Parley E., Jr., 94 -531
March 21, 1994
Page 3
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 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.
"Public Official." Any person elected by
the public or elected or appointed by a
governmental body, or an appointed official in
the Executive, Legislative or Judicial Branch
of the State or any political subdivision
thereof, provided that it shall not include
members of advisory boards that have no
authority to expend public funds other than
reimbursement for personal expense, or to
otherwise exercise the power of the State or
any political subdivision thereof.
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
Mess, Parley E., Jr., 94 -531
March 21, 1994
Page 4
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, it is noted that 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
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 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 or your supervisor.
In summary, 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
Hess, Parley E., Jr., 94 -531
March 21, 1994
Page 5
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.
Your specific inquires will now be addressed.
In order to answer your first three inquiries relating to the
Planning Commission, the nature of the Commission must be reviewed.
You indicated that this Commission is strictly advisory.
Accordingly, based upon your factual statements and by applying
those facts to the Ethics Law, it must be concluded that as a
Member of the Planning Commission, you were not a public official
as that term is defined by the Ethics Law. Thus, aside from
Sections 3(h) and 3(c), which apply to everyone, as a member of the
Planning Commission, you would not be subject to the Ethics Law,
including the provisions of Section 3(g).
Section 3. Restricted activities
(g) No former public official or public
employee shall represent a person, with
promised or actual compensation, on any matter
before the governmental body with which he has
been associated for one year after he leaves
that body.
65 P.S. 5403(g).
Therefore, you
whether as a Member
from representing
Commission.
would not be prohibited, under the Ethics Law,
or former Member of the Planning Commission,
clients or yourself before the Planning
As to your next two inquiries, as stated above, as a Member of
Borough Council, you are a public official and subject to the
Ethics Law and the questions relating to Council have been
addressed above in detail. Again, while the Ethics Law does not
prohibit private employment, including representing clients or
yourself before your governmental body, you would have a conflict
under the Ethics Law, in all such cases so that you would have to
remove yourself from the process and comply with the provisions of
Section 3(j).
As to your final inquiry regarding technical information on
projects, the Ethics Law does not prohibit you from representing
clients before your governmental body, subject to the restrictions
and qualifications noted above.
Hess, Parley E., Jr., 94 -531
March 21, 1994
Page 6
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 Borough Code.
Conclusion: As a Member of Borough Council, you are a public
official subject to the provisions of the Ethics Law. As a Member
of the Planning Commission, however, you are not a public official
as to your functions on that advisory board. 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 /clients have
matters pending before your governmental body, then you could not
participate in such matters and the disclosure requirements of
Section 3(j) of the Ethics Law as outlined above must be satisfied.
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 §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,
incent . D••ko
Chief Co sel