HomeMy WebLinkAbout94-574 BowlenThomas A. Bowlen, Esquire
Bowlen, Morrison & Miele
300 Court Tower
45 East Main Street
Uniontown, PA 15401
Dear Mr. Bowlen:
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 20, 1994
94 -574
Re: Conflict, Public Official /Employee, Solicitor, Law Firm, Joint
Sewage Authority, Hiring Solicitor, Hiring Business Manager,
Employment of Member of Law Firm.
This responds to your letter of May 16, 1994 in which
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a member of a
municipality which will be forming a joint sewer authority with
other municipalities, regarding the employment of a solicitor or a
business manager of that municipal authority if the person is
associated with the law firm of the member.
Facts: The City of Uniontown and the Township of North Union and
South Union have formed a joint sewer authority with a nine member
board, three of which members are appointed from each municipality.
The sewage authority board is currently in the process of hiring a
solicitor and possibly a business manager. Motions carry at the
board by a simple majority vote. One member of the authority who
is appointed by South Union Township is a partner in your law firm
which does business as a professional corporation. The law firm
has three attorney each of whom has an equal vote and
a one -third ownership interest with equal sharing in profits and
losses of the corporation. As to the professional corporation,
motions are carried by simple majority vote by the shareholders who
manage the professional corporation rather than a board of
directors. You inquire as to whether a shareholder attorney or an
associate attorney of the professional corporation, with the
exception of the attorney who is on the municipal authority board,
may serve as solicitor or business manager for the sewage
Bowlen, Thomas A., Esquire, 94 -574
June 20, 1994
Page 2
authority.
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 material
facts relevant to the inquiry. 65 P.S. §$407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As Municipal Authority Board Member appointed by South Union
Township, the Board Member 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
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.
Bowlen, Thomas A., Esquire, 94 -574
June 20, 1994
Page 3
"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.
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
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
Bowlen, Thomas A., Esquire, 94 -574
June 20, 1994
Page 4
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 response to your specific inquiry as to whether a
shareholder attorney or an associate attorney may serve as
solicitor or business manager for the sewer authority, the Ethics
Law does not prohibit the employment of the members of your
professional corporation from being employed in such capacities;
however, the Ethics Law does prohibit the Board Member who is
appointed from South Union Township and who is a partner in your
law firm from using the authority of office or confidential
information by participating or voting as to the hiring process of
the solicitor or business manager. See Obernier, Order 852.
Similarly, the Ethics Law would prohibit such member from using the
authority of office by participating or voting against any
competitors for the position of solicitor or business manager of
the sewage authority so as to insure that the shareholder or
associate attorney's position would be enhanced or insured. See
Pepper, Opinion 87 -008. Therefore, the Board Member who is the
attorney in your firm would have a conflict as to employment of a
solicitor /business manager where a member of the business with
which he is associated is applying for the position. In such a
case, he could not participate or vote and must observe the
disclosure requirements of Section 3(j) of the Ethics Law noted
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
interprbtation of the' Ethics Law. Specifically not addressed
herein is the applicability of the respective municipal code or
Professional Rules of Conduct.
Conclusion: As Municipal Authority Board Member, the individual is
a public official subject to the provisions of the Ethics Law.
Although the Ethics Law would not preclude a member of a law firm
from serving as solicitor or business manger of a sewage authority
Bowlen, Thomas A., Esquire, 94 -574
June 20, 1994
Page 5
when one of the board members of that authority is associated with
the law firm, the Ethics Law would prohibit the use of confidential
information or the authority of office by that board member to
participate or vote regarding the hiring of the solicitor or
business manager or voting against competitors for that position.
The disclosure requirements of Section 3(j) 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). Failure to file such
an appeal at the Commission within fifteen (15) days may result in the
dismissal of the appeal.
cerely,
.ncent Dopk
Chief Cou sel