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HomeMy WebLinkAbout97-540 MlakarLeslie J. Mlakar, Esquire Loughran, Mlakar & Bilik 126 South Pennsylvania Avenue Greensburg, PA 15601 Dear Mr. Mlakar: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 12, 1997 97 -540 Re: Conflict, Public Official /Employee, Member, Sewer Authority, Constable, Delinquent Account Notice Postings. This responds to your letter of February 3, 1997 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 Sewer Authority Member, who is also a Constable, with regard to posting notices for the Authority. Facts: Since 1980, Stanley Povich (Povich) has served as a Member of the Mon Valley Sewer Authority (MVSA), having been appointed to that position by the City of Monessen Council. MVSA provides services for the communities of Donora in Washington County, and Monessen in Westmoreland County. MVSA is a five - member Board with three members appointed by the Monessen Council and two members appointed from Donora. For the past 25 years, Povich has also served as an elected Constable for the First Ward of Monessen. Monessen has four Constables, including Povich. The MVSA bills its customers for sewer service on a quarterly basis. When an account is over 30 days delinquent, a written notice is sent to the customer notifying the customer of the delinquency. If no payment is received by the time the account becomes 45 days delinquent, a final notice is sent to the customer indicating that the account must be paid by the end of that month. If no payment is made after 60 days, a local constable posts the property, notifying the customer that the water service will be shut off effective after the account becomes 66 days delinquent. Constables who post these delinquent accounts receive $5 per property posted. Mlakar /Povich, 97 -540 March 12, 1997 Page 2 Povich is interested in rendering his services as a Constable to the MVSA. Povich seeks an advisory regarding the MVSA's following proposed methods of obtaining Constables. You state that it is Povich's understanding that the MVSA will place an ad in a newspaper of general circulation indicating that it is seeking proposals from Constables for posting delinquent account notices. The ad will provide that two Constables will be retained — one from Monessen and one from Donora. The notice will indicate the date on which the MVSA will accept such quotes at a public meeting. The MVSA will then select a constable from each municipality to act as the posting authority for the MVSA of said delinquent accounts. Povich wishes to submit a quote to the MVSA to provide his services as Constable for the posting of delinquent accounts in the City of Monessen. It is his intention not to participate in the solicitation of quotes, any discussion of the quotes at the public meeting, or a final vote as to hiring. Povich would abstain from voting and would publicly disclose the reason for his abstention, both by filing a disclosure to be placed in the minutes and by publicly announcing it. Based on the foregoing, Povich asks the following questions: (1) May Povich submit a quote to the MVSA for his services as a Constable who would post the shut -off notices for delinquent accounts? (2) In the event Povich is permitted to submit a quote and complies with the provisions of Section 3(j) of the Ethics Law, may the MVSA award the contract to Povich? (3) In the event a motion is made to retain Povich as the Constable to post notices in the City of Monessen and a tie would result, may Povich then vote on his own appointment? (4) In the event that Tess than five Members are present at the meeting, may Povich vote to create a majority vote of the Members of the Authority present at the meeting? Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 further initially noted that your request for advice may only be addressed with regard to Povich's prospective conduct. A reading of Sections 7(10) and 7(1 1) of the Ethics Law makes it clear that an opinion or 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 or advice but any person may then submit a Mlakar /Povich, 97 -540 March 12, 1997 Page 3 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. As a Member of the Mon Valley Sewer Authority (MVSA) , Povich 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. (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. 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 Mlakar /Povich, 97 -540 March 12, 1997 Page 4 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 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. 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: Mlakar /Povich, 97 -540 March 12, 1997 Page 5 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 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 Sections to your inquiry, the applicability of Section 3(a) shall first be addressed. 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. Pursuant to Section 3(a), Povich would have a clear conflict of interest in matters pertaining to the Authority's securing of Constable services. Likewise, should Povich be given such posting work to do for the MVSA, Povich would have a conflict that would preclude him from participating in matters involving such services, including but not limited to the approval of payment of bills for his own services rendered as a Constable. Mlakar /Povich, 97 -540 March 12, 1997 Page 6 In each instance of a conflict of interest, Povich would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 3(j) as set forth above. You are advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a prohibited private pecuniary benefit. Consequently, not only would Povich be required to abstain from voting in such matters, but he would also be required to abstain from other uses of the authority of his office such as lobbying the other members for a particular result — for example, to award the work to Povich. As for Section 3(f), the restrictions of that provision, which are set forth above, are applicable where the contracting /subcontracting is valued at $500 or more. It is important to understand that Section 3(f) does not operate to make contracting permissible where it is otherwise prohibited. In this regard, it is noted that the Municipality Authorities Act of 1945 provides as follows: D. No member of the Authority or officer or employe thereof shall either directly or indirectly be a party to or be in any manner interested in any contract or agreement with the Authority for any matter, cause or thing whatsoever by reason whereof any liability or indebtedness shall in any way be created against such Authority. If any contract or agreement shall be made in violation of the provisions of this section the same shall be null and void and no action shall be maintained thereon against such Authority. , 53 P.S. §312(D). This Commission does not have the statutory jurisdiction to interpret the Municipality Authorities Act, but since it appears on the face of the above provision that Povich's proposed conduct could present a problem under that Act, it is recommended that Povich obtain legal advice as to the applicability of the Municipality Authorities Act of 1945. Turning to your specific inquiries, in response to your first specific inquiry, you are advised that the Ethics Law itself would not preclude Povich from submitting a quote to the MVSA to provide services as a Constable for posting notices of shut -off for delinquent sewer accounts. However, in his capacity as a public official, Povich would be required to observe the restrictions and conditions set forth above, and this Advice expressly does not address the issue of whether such contracting would be permissible under the Municipality Authorities Act of 1945. In response to your second specific inquiry, you are advised that absent any improper understandings under Section 3(b) /3(c), the Ethics Law would not restrict the MVSA itself as to awarding such a contract to Povich. Section 3(a) of the Ethics Law restricts the public official /public employee but not the governmental body. Again, the applicability of the Municipality Authorities Act is not addressed. In response to your third specific inquiry, you are advised that Povich could not vote to break a tie on the issue of his appointment as Constable for the MVSA since the MVSA Board is not a three - member governmental body. Section 3(j) set forth Mlakar /Povich, 97 -540 March 12, 1997 Page 7 above should be reviewed most carefully in this regard. Governmental bodies which include more than three members are treated differently than three - member governmental bodies. In this case, Povich could not vote despite his conflict of interest unless there would be a sufficient number of Members of the MVSA with conflicts under the Ethics Law so as to make the majority or other legally required vote of approval unattainable. Finally, in response to your fourth specific inquiry, you are advised that Povich could not vote to create a majority vote where Tess than five Members would be present at a meeting. Again, under Section 3(j), Povich could only vote if there were so many Members with conflicts of interest under the Ethics Law that a majority or other legally required vote of approval would be unattainable. The mere fact that Members might be absent from a meeting would not make the vote unattainable, and furthermore, based upon the facts which have been submitted, there is no indication that any other Members have conflicts of interest under the Ethics Law. 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. Conclusion: As a Member of the Mon Valley Sewer Authority (MVSA), Povich is a public official subject to the provisions of the Ethics Law. Povich would have a conflict of interest in matters involving the securing by the MVSA of the services of a Constable for posting notices of shut -off for delinquent sewer accounts since Povich seeks to provide those services himself in his capacity as a Constable. Likewise, if Povich were selected to provide such services to the MVSA, he would have a conflict of interest in matters involving such services, including but not limited to the payment of bills for the services he rendered. In each instance of a conflict of interest, Povich would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j). Povich could not vote to break tie votes of other members of the MVSA in matters involving such Constable services, nor could he vote to create a majority vote where less than five members would be present at the meeting. The only circumstances which would permit Povich to vote despite a conflict would be if so many Members of the MVSA would have conflicts under the Ethics Law that the majority or other legally required vote of approval would be unattainable. The restrictions of Section 3(f) would have to be observed where applicable. Although the Ethics Law itself would not preclude Povich from submitting a quote to the MVSA to provide such services as a Constable, it has been recommended that legal advice be obtained as to the applicability of the Municipality Authorities Act of 1945. 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 such. Mlakar /Povich, 97 -540 March 12, 1997 Page 8 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 Pa. Code § 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 such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. opko Chief Counsel