Loading...
HomeMy WebLinkAbout95-628 LundyJeffrey Lundy, Esquire Lukehart & Lundy 219 East Union Street PO Box 74 Punxsutawney, PA 15767 -0074 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 20, 1995 95 -628 Re: Conflict, Public Official /Employee, Attorney, Private Employment or Business, County Solicitor, Realty, Lease to County, Contract. Dear Mr. Lundy: This responds to your letter of November 14, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether a county solicitor is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You are a practicing attorney in Jefferson County and have been asked to take the position of Solicitor. You are presently a one -third owner in a building in Punxsutawney which is currently being leased to the County for use as the District Magistrate's Office. The lease is on a 2 -3 year basis and fair rental value is negotiated at the end of each lease period. You inquire if there would be any restrictions on you as County Solicitor assuming that you do not involve yourself in any negotiations concerning the lease and that you list the lease agreement in your ethical disclosure. Discussion: As County Solicitor for Jefferson County, you would be a public official /employee as that term is defined under the Ethics Law, and hence would be subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Jeffrey Lundy, Esquire, 95 -628 December 20, 1995 Page 2 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Jeffrey Lundy, Esquire, 95 -628 December 20, 1995 Page 3 In applying the above provisions of the Ethics Law to the instant matter, 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 co- owners of the building or matters concerning the building are pending before your governmental body or if you as part of such official duties must participate, review or pass upon such matters, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process. 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 the minutes. 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. Section 3(f) of the Ethics Law provides as follows: Jeffrey Lundy, Esquire, 95 -628 December 20, 1995 Page 4 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 express 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 application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Jeffrey Lundy, Esquire, 95 -628 December 20, 1995 Page 5 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. 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 County Code or Rules of Professional Conduct. Conclusion: As County Solicitor for Jefferson County, you would be a public official /employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the co- owners of the building or matters concerning the building are pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. The provisions of Sections 3(f) and 3(j) must be satisfied to the extent applicable. 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 thirty (30) days of the date of this Advice pursuant to 51 Paced §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 Jeffrey Lundy, Esquire, 95-628 December 20, 1995 Page 6 such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J J Dopk Chief Counsel