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HomeMy WebLinkAbout95-502 MolinaroPeter Molinaro, Jr., Solicitor Borough of Green Tree Gorr, Moser, Dell & Loughney Attorneys at Law 1300 Frick Building Pittsburgh, PA 15219 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 10, 1995 95 -502 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office, Vote, Vacancy, Office of Mayor, Council Member as Candidate for Mayor. Dear Mr. Molinaro: This responds to your letters of December 14, 1994 and December 19, 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 with regard to participating in the deliberations and the vote of council in selecting a person to fill the vacant office of borough mayor, where the council member is a candidate to fill that vacant office. Facts: As Solicitor for the Borough of Green Tree, Pennsylvania, you seek an advisory from the State Ethics Commission on behalf of Council Member Charles Hammer. The Borough of Green Tree is a Home Rule Municipality. Its governing body consists of seven council members, each of whom serves a four -year term and receives a salary at the rate of $1,500.00 per year. The Borough's Home Rule Charter also provides for a Mayor to be elected at large for a term of four years. The Charter provides that the Mayor is to receive a salary at the rate of $4,200.00 per year. On October 20, 1994, Edward S. Crawford, the Mayor of the Borough of Green Tree, died creating a vacancy in the Office of Mayor. Mayor Crawford had been elected to a four year term in the Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 2 municipal -wide election held on November 2, 1993. Pursuant to the Home Rule Charter, Council declared a vacancy in the Office of Mayor, posted and advertised the notice of vacancy and conducted the required interviews. At a regularly scheduled meeting held within the time period mandated in the Charter, Council scheduled a vote to fill the vacancy in the Office of Mayor. Council Member Charles Hammer was and is a candidate for the Office of Mayor. You ask whether Charles Hammer, as a Member of the Borough Council who is also a Candidate for the vacancy in the Office of Mayor, may participate in the deliberations and the vote of Council in selecting from among the candidates a person to fill the Office of Mayor. 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 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 also initially noted that a reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Specifically with regard to this case, it is apparent from the facts which you have submitted that there has already been official action taken with regard to filling the vacancy in the Office of Mayor. This Advice expressly does not address any such past conduct by Council Member Hammer. As a Borough Council Member for the Borough of Green Tree, Pennsylvania, Mr. Charles Hammer 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. Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 3 (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. "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. Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 4 65 P.S. §402. 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 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 /employee is otherwise appropriately contracting with his own governmental body, 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 Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 5 to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for 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 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 Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 6 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 circumstances which you have submitted, 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. A use of authority of office /confidential information by Council Member Charles Hammer to appoint himself to the position of Mayor or to otherwise advance his candidacy for that position would transgress Section 3(a) of the Ethics Law. In Lewis, Order No. 876, the State Ethics Commission determined that a member of a township council violated Section 3(a) of the Ethics Law, Act 9 of 1989 when he cast the deciding vote to appoint himself to the compensated position of Executive /Mayor which was a private pecuniary benefit to himself. Reconsideration was denied in Lewis, Order No. 876 -R, which denial was affirmed by Commonwealth Court by Memorandum Opinion issued June 22, 1994 (Docket No. 1282 C.D. 1993). Thereafter, Lewis' Petition for Allocatur was denied by the Pennsylvania Supreme Court by Order dated December 1, 1994 (Docket No. 558 E.D. Allocatur 1994) . Similarly, in Koslow v. SEC, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988), allocatur denied, Pa. , 553 A.2d 971 (1988), the Commonwealth Court upheld a determination of this Commission that a first class township Commissioner violated Section 3(a) of the Ethics Law, Act 170 of 1978, when he cast the deciding vote to Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 7 appoint himself to a compensated authority position. The Court did not accept the argument by Koslow that the compensation was provided by law for such authority position. You are advised that the term "authority of office" encompasses more than mere deliberations and /or voting and extends to every facet of a particular public position. See, Juliante, Order No. 809 at 16. Thus, Council Member Charles Hammer would have a conflict of interest as to matters pertaining to the vacancy in the Office of Mayor. In each instance of a conflict of interest, Charles Hammer would be required to abstain from any participation and to publicly disclose his abstention and the reasons for same both orally and by filing a written memorandum with the secretary recording the minutes. As for Section 3(f), the restrictions of that Section would have to be observed where a Council Member would be chosen to serve as Mayor for the Borough of Green Tree, given that the $500.00 threshold would be exceeded and the exclusion in the definition of "contract ", 65 P.S. §402, for matters in consideration of current public employment would be inapplicable. 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 Green Tree Home Rule Charter. Conclusion: As a Borough Council Member for the Borough of Green Tree, Pennsylvania, Mr. Charles Hammer is a public official subject to the provisions of the Ethics Law. As a candidate who seeks to fill the vacant office of the Borough Mayor, Charles Hammer would have a conflict of interest in his capacity as a Borough Council Member as to matters pertaining to that vacancy. In each instance of a conflict of interest, Charles Hammer would be required to abstain from any participation, including but not limited to the deliberations and the vote of Council in selecting from the candidates a person to fill that office. In each instance of a conflict of interest, Charles Hammer would be required to publicly disclose his abstention and the reasons for same both orally and by filing a written memorandum with the secretary recording the minutes. As for Section 3(f), the restrictions of that Section would have to be observed where a Council Member would be chosen to serve as Mayor for the Borough of Green Tree, given that the $500.00 threshold would be exceeded and the exclusion in the definition of "contract ", 65 P.S. §402, for matters in consideration of current public employment would be inapplicable. Molinaro, Jr., Peter, 95 -502 January 10, 1995 Page 8 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 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. Sincerely, Vincent J.`Dopko Chief Counsel IV .14.