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HomeMy WebLinkAbout95-512 AvrigianMason Avrigian, Jr. 150 Macklenburg Drive Penllyn, PA 19422 Dear Mr. Avrigian: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 3, 1995 95 -512 Re: Conflict, Public Official /Employee, Second Class Township, Attorney, Supervisor, Law Firm, Business With Which Associated, Solicitor. This responds to your letter of January 6, 1995 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 an attorney from becoming a second class township supervisor when the law firm with which he is associated is solicitor for the township. Facts: As a resident of Lower Gwynedd Township, a second class township in Montgomery County, you are interested in running for the position of Township Supervisor. Two of the five seats on the Township Board will be open for election in 1995 with the primary in May and the general election in November. As an associate attorney in the law firm of Wisler, Pearlstine, Talone, Craig, Garrity & Potash in Blue Bell, Pennsylvania, James J. Garrity, who is one of the partners, is the Solicitor for Lower Gwynedd Township having originally been appointed in 1988 and reappointed up to and including 1995. If you are elected, you inquire as to your status as an associate attorney in the law firm which represents the Township. In particular, you ask whether you would be prohibited from taking office or be limited in your functions as a Supervisor and lastly whether Garrity or the firm would be prohibited from continuing to serve as Township Solicitor. Discussion: As Supervisor for Lower Gwynedd Township, you would become a public official as that term is defined under the Ethics Law, and hence you would be subject to the provisions of that law. ef Avrigian, Jr., Mason, 95 -512 February 3, 1995 Page 2 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. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 Avrigian, Jr., Mason, 95 -512 February 3, 1995 Page 3 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 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 Avrigian, Jr., Mason, 95 -512 February 3, 1995 Page 4 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 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 Avrigian, Jr., Mason, 95 -512 February 3, 1995 Page 5 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 applying the above provisions of the Ethics Law to the questions you posed, you are advised that the Ethics Law would not prohibit you from taking office as a township supervisor if you are elected. The Ethics Law does not prohibit a public official /employee from having outside business interests; however, a conflict would arise whenever those private interests conflict with the public interest. See Pancoe, Opinion 89 -011. Further, whenever any private interest conflicts with the public interest, the public interest is paramount. Crisci, Opinion 89 -013. If you are elected Supervisor, the law firm in which you are an associate would be a business with which you are associated as that term is defined under the Ethics Law. Accordingly, you would have a conflict as to any matter involving the law firm or any of its clients. See Kannebecker, Opinion 92 -010 wherein the full Commission opined upon the conflicts that a supervisor, who was an attorney, had as to his law clients: We believe that you would indeed have a conflict as to an ongoing client or a client who is on a retainer even if you would not represent the client as to a matter pending before the Township. However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior representations of any given client and the period of time over which that occurred. Kannebecker at 5. Additionally, you would have a conflict in matters concerning the appointment, retention, fees, salary, or any financial matter as to the Township Solicitor which is currently the law firm in which you are an associate. In such instances, you would have to recuse yourself and observe the disclosure requirements of Section 3(j) of the Ethics Law noted above. As to whether your possible service as a Township Supervisor would prevent Garrity or the firm from continuing to serve as Solicitor to the Township, you are advised that the Ethics Law would not prohibit Garrity or the firm from serving as Solicitor, although you would have conflicts in the areas 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 Avrigian, Jr., Mason, 95 -512 February 3, 1995 Page 6 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 or the Rules of Professional Conduct. Conclusion: As Supervisor for Lower Gwynedd Township, you would become a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit you as an attorney from becoming a Second Class Township Supervisor when your law firm is Solicitor for the Township, you would have a conflict as to matters involving your law firm, their clients and issues concerning the appointment or financial matters as to the Solicitor. In all such instances, you must recuse yourself and observe the disclosure requirements of Section 3(j) 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 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS 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. 44) Vincent X11. Do 7 ko Chief Counsel