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HomeMy WebLinkAbout94-641 HummelRobert E. Hummel 1001 Woodside Avenue Ellwood City, PA 16117 Dear Mr. Hummel: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 6, 1994 94 -641 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office or Confidential Information, Business with which Associated, Coalhandler, Electric Supplier, Council Electric Committee. This responds to your letter of October 28, 1994 (received November 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 borough council member who is employed by the utility company which serves as the wholesale supplier of electricity to the borough, from serving on borough council and /or being appointed and serving as chair of the council's electric committee. Facts: Having recently been appointed to fill a vacancy on the _ Borough Council for the Borough of Ellwood City, Pennsylvania, you request an advisory from the State Ethics Commission. Your concern is as to a potential conflict of interest due to your employment as a coalhandler for Penn Power Company. Penn Power serves as the wholesale supplier of electricity to the Borough of Ellwood City. You ask for an advisory from the State Ethics Commission as to whether you would have a conflict of interest with regard to your serving on Borough Council and /or being appointed as Chairman of the Council's Electric Committee. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 Hummel, Robert E., 94 -641 December 6, 1994 Page 2 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. It is further initially noted that you have posed very specific questions regarding the Ethics Law. This Advice shall be limited to setting forth the pertinent provisions of the Ethics Law and addressing the specific questions you have raised. As a Borough Council Member for the Borough of Ellwood City, 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 Hummel, Robert E., 94 -641 December 6, 1994 Page 3 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. "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 as follows: 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 any person who has been awarded a contract with the governmental body with which the public official or public employee is Hummel, Robert E., 94 -641 December 6, 1994 Page 4 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 the law would require that an open and public process must be used in all situations where a public official's employer is otherwise appropriately contracting with the governmental body, in this case the Borough of Ellwood City, 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 (j) Where voting conflicts are not otherwise addressed by the Constitution of Hummel, Robert E., 94 -641 December 6, 1994 Page 5 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. In applying the above provisions of the Ethics Law to the specific questions which you have raised, 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 Hummel, Robert E., 94 -641 December 6, 1994 Page 6 with which he or a member of his immediate family is associated. Penn Power Company (Penn Power), as your employer is a business with which you are associated. With regard to your service on Borough Council, Section 3(a) of the Ethics Law would not preclude your service as a Borough Council Member merely because you are employed by Penn Power. Rather, Section 3 (a) would operate to restrict your official action in matters where the use of the authority of your public position or confidential information received by being in your public position would result in a private pecuniary benefit to Penn Power. In the event that any matter concerning Penn Power would come before the Borough Council, you would have a conflict of interest. Similarly, you could not use the authority of your public position or confidential information received by being in that position to the detriment of competitors of Penn Power. See Pepper, Opinion 87 -008. In each instance of a conflict of interest, you would be required to abstain from any participation and to fully observe the disclosure requirements of Section 3(j) as set forth above. As for your proposed service as Chairman -- or in any other capacity -- on the Council's Electric Committee, such would be prohibited. See, Fletcher, Opinion 89 -018. If you were to serve in any capacity on the Council's Electric Committee, you as a Member of that Committee would consider official action (almost certainly including contracts) as to the business with which you are associated and possibly other electric suppliers. As noted above, you would have a conflict of interest as to such matters which would preclude your participation and /or your access to related confidential information. Therefore, your employment with Penn Power as the wholesale supplier of electricity to the Borough of Ellwood City is adverse to your position on the Council's Electric Committee and the Ethics Law would prohibit your service on that Committee. 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: As a Borough Council Member for the Borough of Ellwood City, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude your serving as a Borough Council Member merely because you are employed by Penn Power Company (Penn Power) which serves as the wholesale supplier of electricity to the Borough. Penn Power is a business with which you are associated, as that term is defined in the Ethics Law. You would have a conflict of interest as to matters Hummel, Robert E., 94 -641 December 6, 1994 Page 7 involving or affecting Penn Power. You must refrain from accessing confidential information which would result in a private benefit to Penn Power or a detriment to its competitors. In each instance of a conflict of interest you would be required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Section 3(a) of the Ethics Law would prohibit your service on the Council's Electric Committee. 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 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. such. 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 PAS 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, v Vincent Do ko Chief Counsel