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HomeMy WebLinkAbout94-568 HuyettScott L. Huyett, Esquire Attorney at Law 538 Elm Street Reading, PA 19601 Dear Mr. Huyett: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 2, 1994 94 -568 Re: Conflict, Public Official /Employee, Private Employment or Business, Borough, Municipal Authority, Mayor, Mayor as Masonry Contractor Working for Authority. This responds to your letter of May 4, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a borough mayor is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a municipal authority. Facts: A Berks County Borough has caused a municipal authority to be organized under the Municipal Authorities Act of Pennsylvania which authority owns a sanitary sewage collection system and waste water treatment plant that was constructed in the mid 1960's. Though the system is operated by Shoemakersville Borough by virtue of a lease, financing for the design and construction of the system was handled by the authority on a lease back basis. When the authority determined to expand and upgrade the system in 1994, bids were advertised. Since the Mayor of the Borough is not full time, and is self employed as a masonry contractor, a general contractor who is interested in bidding on the authority project has asked the Mayor to submit prices to him for masonry work on the project. The general contractor would incorporate into his bid on the contract the price he received from the mayor who would be a subcontractor. Since the specifications of the project call for the disclosure by the general contractor of the names and addresses of the proposed subcontractors, the Mayor's business name would be disclosed. Although the Borough Council directs the activities of the Huyett, Scott L., Esquire, 94 -568 June 2, 1994 Page 2 Borough, the Municipal Authority and the Borough are separate and independent local agencies. The only legal effect that Borough Council has on the authority is to direct the types of projects the authority may undertake. The Borough also appoints the members to the Municipal Authority. No appointments on the authority are due for renewal or replacement until the end of 1994 with memberships staggered by years. The authority is bound by law to award the contract to the lowest bidder and hence there is no discretion other than in determining responsibility. The Borough Mayor is responsible for the day to day operations of the municipal police force and is empowered to accept or veto ordinances adopted by Borough Council subject to an override vote. The Mayor may also vote to break a tie in Borough Council. The Borough Council legally does not vote on the award of the contract for the proposed work for the sanitary sewage system. After reviewing the Ethics Law and other statutes, you seek an advisory as to whether in the future the Mayor may participate in the proposed work in a private capacity. You have advised the Mayor that he may not conduct any lobbying activities even though the authority is bound by law to award the contract to the lowest bidder. Lastly, you seek an expeditious response since there is work to be done at present and the Mayor is able to give the project his attention. Discussion: As a Mayor for the Borough of Shoemakersville, he is a public official as that term is defined under the Ethics Law, and hence he is 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 Huyett, Scott L., Esquire, 94 -568 June 2, 1994 Page 3 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. 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, we note 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. Thus, Section 3(a) of the Ethics Law would not bar the Mayor Huyett, Scott L., Esquire, 94 -568 June 2, 1994 Page 4 from being a subcontractor as to the project of the Municipal Authority. However, as a public official, the Mayor would have a conflict in any matter before Borough Council concerning the municipal authority expansion project where through his participation, such as voting to break a tie, he could reasonably and legitimately anticipate through such action that he would be able to obtain a subcontract on the municipal authority expansion project as a masonry subcontractor. See Amato Opinion, 89 -002. For example, if Council were deadlocked on the issue of whether to go forward with the project or deadlocked on the issue of how expansive the project should be, the Mayor should not vote to break a tie in such issues if he could reasonable and legitimately anticipate that by voting in favor of the project or its expansion that he would receive a subcontract on the municipal authority project. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the Mayor abstain from participation but also file a written memorandum to that effect with the person recording the minutes. 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 on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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: A Borough Mayor is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude the Mayor from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that a matter concerning the project came before Council, and the Mayor would have a conflict and he could not participate and he would have to comply with the disclosure requirements of Huyett, Scott L., Esquire, 94 -568 June 2, 1994 Page 5 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. 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). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, cent Dop o Chief Counsel