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HomeMy WebLinkAbout94-613 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 29, 1994 94 -613 Re: Conflict, Public Official /Employee, Private Employment or Business, Township Solicitor, Subcontract to Perform Legal Work for Company Awarded Contract to Revise Township's Subdivision Ordinances. This responds to your letter of September 8, 1994, in which you requested confidential advice from the State Ethics Commission. Issue: Whether a solicitor for a Second Class Township is prohibited or restricted by the Public Official and Employee Ethics Law from subcontracting with a company that has been awarded a contract to revise the township's subdivision ordinance, whereby the solicitor would perform the related legal work. Facts: As the appointed Solicitor for Township A ( "Township "), which is a Second Class Township in B, Pennsylvania, you request an advisory from the State Ethics Commission. Your duties as Solicitor are as set forth in the Second Class Township Code, as to which you specifically reference 53 P.S. §S65581 and 65582. Your appointment as Solicitor is memorialized in a written contract, and you are paid an hourly rate by the Township on an "as needed and as . worked" basis. Notwithstanding the said written contract with the Township, you have your own private law practice, and municipal law is but one aspect of that law practice. The Township advertised for bids to have its Subdivision Ordinance completely revised. The Township has been granted approval to use certain Block Grant funds to pay for the Subdivision Ordinance revision. The bid has been awarded to a company that proposed a total price of approximately $10,000.00 of which approximately $3,000.00 was allocated for legal services associated with developing and completing the said revision. The said company has proposed to hire you as a subcontractor to perform the said legal services at a flat fee of $3,000.00. You state that the Township was made clearly aware of the said company's proposal to hire you as was the County B Department of Planning, which is Confidential Advice, 94 -613 September 29, 1994 Page 2 the agency responsible for administering the said block grant funds. An Assistant Solicitor for the County B Department of Planning issued a written opinion regarding this matter, and you have enclosed a copy of same for review and consideration, which document is incorporated herein by reference. You note that the said Assistant County Solicitor was of the opinion that there is no actual conflict of interest, and that any other apparent conflict of interest can be resolved provided certain things are done and not done as the case may be. You have not accepted any subcontracting position; you have explained to all parties that you are uncomfortable with the possible subcontracting position and that you might accept such a position only if you were certain that doing so would not be contrary to your duties to the Township and would not be a violation of the provisions of the Ethics Law. Based upon all of the above, you request an advisory as to the prohibitions and /or restrictions of the Ethics Law which would apply in this matter. 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. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the Solicitor for Township A, you are a public official /employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Before addressing the applicable provisions of the Ethics Law, it is initially noted that the Supreme Court of Pennsylvania has the exclusive authority to regulate a Pennsylvania attorney's conduct in the private practice of law, see e.a. Pennsylvania Public Utilit Bar Association v. Thornbur h, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), aff'd. per curiam, 498 Pa. 589, 450 A.2d 613 (1982) . This Advice does not address the Rules of Professional Conduct which apply to Pennsylvania attorneys. Turning now to the applicable provisions of the Ethics Law, Section 3(a) of the Ethics Law provides: Confidential Advice, 94 -613 September 29, 1994 Page 3 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 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 or Confidential Advice, 94 -613 September 29, 1994 Page 4 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, 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. Your private law practice is a business with which you are associated. 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 the private company with which you would be subcontracting to perform legal work on the subdivision ordinance would have any matter pending before the Township or if you as part of such official duties would participate, review or pass upon such a matter, a conflict would exist. Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. In those instances, it would be necessary that you be removed from that process. This conflict of interest would apply not only with regard to the subdivision ordinance revision itself, but would also apply to any matter before the Township involving the said company. Kannebecker, supra. 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 Confidential Advice, 94 -613 September 29, 1994 Page 5 the minutes or your supervisor. such. 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 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. 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 Second Class Township Code and /or the Rules of Professional Conduct. Conclusion: As Solicitor for Township A, you are a public official /employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from subcontracting in your private capacity with a company that has been awarded a contract to revise the Subdivision Ordinances of the Township, whereby you would perform the related legal work, subject to the restrictions and qualifications as noted above. In the event that the said company would have any matter pending before the Township then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to 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. This letter is a public record and will be made available as Confidential Advice, 94 -613 September 29, 1994 Page 6 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 lea. 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) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, Vincent X11 Dopko Chief Counsel