HomeMy WebLinkAbout98-557 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 19, 1998
ADVICE OF COUNSEL
98 -557
Re: Conflict; Public Official /Employee; Borough; Member; Solicitor; Council;
Committee C; Planning Commission; Authority D; Mayor; Borough Manager;
Immediate Family; Spouse; Business with which Associated; Non - profit
Corporation; College; Revitalization Project; Business District.
This responds to your letters of March 6 and April 16, 1998, and your faxed
transmission of May 18, 1998, by which you requested a confidential advisory from
the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
prohibition or restrictions upon various members of a borough's council; committee C;
planning commission; and /or authority D, two of which members also serve as the
borough mayor and business manager, with regard to a revitalization project for the
borough's business district, where the financial interests of these individuals, their
immediate family members, or businesses with which they or their immediate family
members are associated would be implicated.
Facts: As Solicitor for Borough A ( "the Borough ") in County B, you seek a
confidential advisory on behalf of fifteen individuals who serve one or more of the
following three bodies: the Borough's Committee C ( "the Committee "); the Borough's
Planning Commission; and Authority D ( "the Authority ").
Your request for an advisory focuses upon a revitalization project in the Borough
which will likely involve all three of the above bodies. The Borough is beginning a
project to revitalize its business district. The project may consist of physical
improvements, attracting additional retail businesses, and possibly additional
development to the district. The scope of any improvements or developments will not
be determined until there has been a broad -based public participation process.
The first of the three bodies, the Committee, was established by Borough
Council (Council) to guide a strategic planning process for the Borough business
district. Shortly after establishing the Committee, Council passed a resolution ratifying
the establishment of the Committee as an "advisory board" within the meaning of the
definition of "public official" set forth in the Ethics Law, 65 P.S. §402 and the
Commission Regulations, 51 Pa. Code 11.1. You have submitted a copy of that
Resolution. You state that the Committee has no spending authority or any ability to
contract on behalf of the Borough. The Committee makes recommendations to
Council.
You state that the powers and duties of the second body, the Planning
Commission, are set forth in the Codified Ordinances of the Borough as well as in the
Confidential Advice, 98 -557
May 19, 1998
Page 2
Pennsylvania Municipalities Planning Code, Article 11. You state that the Planning
Commission is purely advisory and without the authority to expend public funds (other .
than reimbursing personal expenses) or to otherwise exercise governmental power. The
Planning Commission functions as an advisory body to Council on planning and zoning
matters, including, but not limited to, reviewing and recommending action on
conditional use permit applications, requests for subdivisions, proposed changes to the
Borough's planning and zoning ordinances, and preparation and review of the
Borough's comprehensive plan. The Planning Commission has no authority to expend
public funds except by prior approval of Council. The Planning Commission has no
authority to otherwise exercise governmental power.
The third body, the Authority, was organized by the Borough in 1993, pursuant
to the Municipality Authorities Act of 1945. You have submitted a copy of Ordinance
No. 885 by which the Authority was established, together with its Articles of
Incorporation and Certificate of Incorporation. Section V of the Ordinance and Article
F of the Articles of Incorporation provide that the Borough retains the right to approve
any plan of the Authority. You state that it is premature to determine exactly what
role, if any, the Authority will play in the revitalization project, but that the Authority
will continue to act within the limits of its enabling legislation.
After soliciting recommendations "from a number of sources" (which you do not
identify), the Committee issued a request for proposals (RFP) for a market study to
determine the economic viability of various commercial and residential uses in or near
the business district. The goal of the market study would be to assist existing
businesses and to acquire information to determine whether additional development
would be feasible. You note that additional expertise including, for example, the
services of a strategic planning facilitator, land -use planner, traffic engineer, and the
like, could also be sought by the Committee.
The market study project would be a joint project between E College ( "the
College "), a private, non - profit institution and the largest land -owner and largest
employer in the Borough, and the Borough. You assert that the Borough alone would
be signatory to any contract but that the College would share all costs of the
marketing study. Additionally, the College has promised to share "all costs that would
otherwise be borne by the Borough government relating to the current strategic
planning process."
The RFP indicated that the market study would be a joint project between the
College and the Borough. The RFP stated that a certain tract of land which belongs to
the College could be considered for possible development. The RFP indicated that it
should be assumed that College land, which is particularly desirable, is available for the
project. The RFP further stated that the cost of acquiring College land "should be
considered as a contribution in return for an equity position in the development, not
as a cost which the development must bear through cash or financing." (See, letter of
March 6, 1998 at 2 (Quoting the RFP)).
Although you do not state to whom the RFP was sent, five of the recipients
responded with proposals and one withdrew. The Committee was preparing to
interview representatives from the responding companies when questions were raised
about possible conflicts of interest of some Members of the Committee.
You state that although Chapter 1220.01 of the Codified Ordinances establishes a "Department
of Planning," there is in fact no Department of Planning in the Borough, nor is there a Director of
Planning as provided in the Municipalities Planning Code, 53 P.S. § 10208.
Confidential Advice, 98 -557
May 19, 1998
Page 3
The conflict of interest questions focused primarily (but not exclusively) upon
individuals who have a relationship with the College. It was suggested that the results
of the market study would financially benefit the College by assisting it in the
commercial development of some of its land. You state that the study results could
potentially aid the College but could also aid other business and property owners in the
business district. You state that there could be Tong -range effects such as increased
property and rental values. However, you state that if the market study would be
negative, and /or if public opinion would be strongly negative, revitalization could be
very limited in scope and might not involve the College land at all.
If College land would be involved, the project could result in related rezoning
requests by the College for a portion of its property which is presently zoned
institutional. Such rezoning would be needed in order for the commercial development
to occur. There could also be subdivision requests from the College. All such requests
would be submitted to the Planning Commission for review and the submission of
recommendations to Council. Additionally, any commercial development on the
College's land would likely result in the re- drawing of the business district boundaries,
which would be submitted to the Planning Commission and the Authority for their
review prior to consideration by Council.
The submitted facts pertaining to the relationships of the individuals on whose
behalf you have inquired are as follows.
The Committee consists of eleven voting members and three ex- officio
members. The voting members shall first be addressed:
• The Committee's chair, Attorney F, is a member of Council and is
married to a tenured faculty member of the College.
• Mr. G is the President of the Board of Managers (the corporate board)
of the College.
• Mr. H is a Vice President of the College and is also a member of the
Authority.
• Mr.I is a Vice President of the College.
• Ms. J is a member of Council.
• Attorney K is the Chair of the Planning Commission.
• Mr. L is a member of the Planning Commission and is also a member
of the Board of Directors of a M business in the business district.
• Mr. N is the President of the Authority.
• Mr. 0 is a local businessman who owns what you characterize to be
a "significant percentage" of property in the business district.
• Mr. P is an individual whose daughters are employed at the College.
• Attorney Q is the Solicitor for the Authority.
The Committee's ex- officio members include the following:
• Ms. R is President of Council.
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May 19, 1998
Page 4
• Mr. S is the Mayor of the Borough.
• Ms. T is the Borough Manager.
With regard to the members of the Planning Commission, as noted above, two
of the members are also members of the Committee, specifically Attorney K and Mr.
L. One other member of the Planning Commission, Mr. U, is a member of the College
faculty.
With regard to the Authority, members include Mr. H, who, as noted above, is
a member of the Committee and a Vice President of the College, and Mr. N, who, as
noted above, serves as a member of the Committee and President of the Authority.
Attorney Q serves as a member of the Committee and as the Authority Solicitor.
Based upon all the above, you seek an advisory from the State Ethics
Commission on the following specific issues: 1) whether, pursuant to the Public
Official and Employee Ethics Law, the identified Committee Members may serve, fully
participate, and vote on the Committee; and 2) whether, pursuant to the Public Official
and Employee Ethics Law, members of Council, the Planning Commission, and /or the
Authority must recuse themselves from matters which may arise in the course of the
strategic planning process, such as the award of contracts by Council, the
consideration of zoning requests, and /or the modification of business district
boundaries, if their interests or the interests of their immediate family or of their
employers are implicated.
You state that interviews of representatives from the companies which
responded to the RFP have been postponed pending the resolution of these inquiries.
Di 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 further noted that pursuant to the same aforesaid Sections of the Ethics
Law, 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.
The term "public official" is defined in the Ethics Law as follows:
Section 2. Definitions
"Public official." Any person elected by the public or
elected or appointed by a governmental body, or an appointed
official in the Executive, Legislative or Judicial Branch of the State
or any political subdivision thereof, provided that it shall not include
members of advisory boards that have no authority to expend public
funds other than reimbursement for personal expense, or to
Confidential Advice, 98 -557
May 19, 1998
Page 5
otherwise exercise the power of the State or any political
subdivision thereof.
65 P.S. §402 (Emphasis added).
The regulations of the State Ethics Commission similarly define the term "public
official" and set forth the following additional criteria that are used to determine
whether the advisory board exception applies:
(i) The following criteria will be used to determine if the
exception in this paragraph is applicable:
(A) The body will be deemed to have the power to expend public
funds if the body may commit funds or may otherwise make payment of
moneys, enter into contracts, invest funds held in reserves, make loans or
grants, borrow money, issue bonds, employ staff, purchase, lease, acquire
or sell real or personal property without the consent or approval of the
governing body and the effect of the power to expend public funds has a
greater than de minimis economic impact on the interest of a person.
(B) The body will be deemed to have the authority to otherwise
exercise the power of the Commonwealth or a political subdivision if one
of the following exists:
(I) The body makes binding decisions or orders adjudicating
substantive issues which are appealable to a body or person other than the
governing authority.
(II) The body exercises a basic power of government and
performs essential governmental functions.
(III) The governing authority is bound by statute or ordinance to
accept and enforce the rulings of the body.
(IV) The body may compel the governing authority to act in
accordance with the body's decisions or restrain the governing authority
from acting contrary to the body's decisions.
(V) The body makes independent decisions which are effective
without approval of the governing authority.
(VI) The body may adopt, amend and repeal resolutions, rules,
regulations or ordinances.
(VII) The body has the power of eminent domain or
condemnation.
(VIII) The enabling legislation of the body indicates that the body
is established for exercising public powers of the Commonwealth or a
political subdivision.
(ii) The term does not include judges and inspectors of
elections, notary publics and political party officers.
(iii) The term generally includes persons in the following offices:
Confidential Advice, 98 -557
May 19, 1998
Page 6
(A) Incumbents of offices filled by nomination of the Governor
and confirmation of the Senate.
(B) Heads of executive, legislative and independent agencies,
boards and commissions.
(C) Members of agencies, boards and commissions appointed
by the General Assembly or its officers.
(D) Persons appointed to positions designated as officers by the
Commonwealth or its political subdivisions.
(E) Members of municipal, industrial development, housing,
parking and similar authorities.
(F) Members of zoning hearing boards and similar quasi - judicial
bodies.
(G) Members of the public bodies meeting the criteria in
paragraph (i)(A).
51 Pa. Code §11.1.
Status as a "public official" subject to the Ethics Law is determined by applying
the above definition and criteria to the position held. The focus is necessarily upon the
position itself, and not upon the individual incumbent in the position, the variable
functions of the position, or the manner in which a particular individual occupying the
position may carry out those functions. See Philips v. State Ethics Commission, 470
A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa.
1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that
coverage under the Ethics Law be construed broadly and that exclusions under the
Ethics Law be construed narrowly. See, Phillips, supra.
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
Confidential Advice, 98 -557
May 19, 1998
Page 7
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.
"Immediate family." A parent, spouse, child, brother or
sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association, organization,
self - employed individual, holding company, joint stock company,
receivership, trust or any legal entity organized for profit.
"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.
"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 associated, unless the contract has been awarded through an
Confidential Advice, 98 -557
May 19, 1998
Page 8
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.
Section 3(f) does not operate to make contracting with the governmental body
permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the 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, Section 3(f) requires that an
"open and public process" be observed as to the contract with the governmental body.
Pursuant to Section 3(f), an "open and public process" includes:
(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 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
Confidential Advice, 98 -557
May 19, 1998
Page 9
has abstained shall be permitted to vote to break the tie vote if
disclosure is made as otherwise provided herein.
In each instance of a conflict, 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 voting is permissible provided
the disclosure requirements noted above are followed. See, Major, Advice 91- 523 -S.
In applying the above provisions of the Ethics Law to the facts which you have
submitted, it is noted that both the Ethics Law and the Regulations of the State Ethics
Commission exclude from the definition of "public official" the members of advisory
boards that have no authority to expend public funds (other than the reimbursement
for personal expenses) and that have no authority to otherwise exercise governmental
power. 65 P.S. §402; 51 Pa. Code § 1 1.1 ( "Public official ").
Based upon the facts which you have submitted, the Borough's Committee C
( "the Committee ") was specifically designed by Council to be an "advisory board"
within the exclusion set forth in the definition of "public official" in both the Ethics
Law, 65 P.S. §402, and the Commission Regulations, 51 Pa. Code §11.1.
Likewise, with regard to the Planning Commission, based upon the facts which
you have submitted, the Planning Commission appears to be a typical planning
commission which falls within the statutory exception to the definition of "public
official" as a purely advisory board lacking the authority to expend public funds (other
than to reimburse personal expenses) or to otherwise exercise governmental power.
Conditioned upon the assumption that the Borough's Committee C and the
Borough's Planning Commission are in fact purely advisory bodies with no power to
expend public funds (other than to reimburse personal expenses) or to otherwise
exercise governmental power, members of these two bodies would not, as such, be
considered "public officials" subject to the Ethics Law. Therefore, the following seven
individuals whose service is limited to the said Committee and /or the Planning
Commission would not be subject to the conflict of interest restrictions of Section 3(a)
or the contracting restrictions of Section 3(f) of the Ethics Law: Mr. G; Mr.I; Attorney
K; Mr. L; Mr. 0; Mr. P; and Mr. U.
The other eight individuals on whose behalf you have inquired shall now be
addressed.
Attorney F, Ms. J and Ms. R are public officials subject to the Ethics Law in
their capacities as members of Borough Council.
Mr. S is a public official subject to the Ethics Law in his capacity as Mayor of
the Borough.
Ms. T is a public official /public employee subject to the Ethics Law in her
capacity as the Borough Manager.
Attorney Q, would not, in his capacity as the Authority's Solicitor, be
considered a "public official" or "public employee" subject to the Ethics Law,
conditioned upon the assumption that he is not an employee of the Authority but
Confidential Advice, 98 -557
May 19, 1998
Page 10
rather is retained. See, C P C v. State Ethics Commission, 698 A.2d 155 (Pa.
Commw. Ct. 1997), allocatur den., No. 614 M.D. Allocatur Docket 1997 (Pa.
December 2, 1997) (Compare, P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa.
Commw. Ct. 1997), appeal Dendina, No. 0091 M.D. Appeal Docket 1997, wherein
the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest
provisions of the Ethics Law do apply to solicitors who are public employees and are
not just on retainer).
However, a Solicitors are required to file Statements of Financial Interests. 65
P.S. §404(a); Foster, Opinion No. 98 -002. Therefore, Attorney Q would be required
to file Statements of Financial Interests providing full disclosure as required by the
Ethics Law, each year the aforesaid position as Solicitor is held and the year following
termination of service in said position.
Moreover, it is the State Ethics Commission's view that every "person" is
subject to Section 3(b) of the Ethics Law. Foster, Opinion No. 98 -002. As noted
above, Section 3(b) of the Ethics Law essentially provides that no "person" shall offer
or give to a public official, public employee, or nominee or candidate for public office,
or to a member of such an individual's immediate family, or to a business with which
such an individual is associated, anything of monetary value based upon the
offeror's /donor's understanding that the vote, official action, or judgement of the
public official, public employee, or nominee or candidate for public office would be
influenced thereby. The State Ethics Commission has held that a Solicitor, though not
himself a public official /public employee, may not engage in such conduct in his
capacity as a "person." Foster, supra. Of course, 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 your inquiry in Tight of the
aforesaid developments in case law.
Those who serve as members of the Authority, specifically Mr. H and Mr. N,
would be considered "public officials" subject to the Ethics Law. Although the facts
which you have submitted indicate that the Ordinance and Articles of Incorporation
establishing the Authority included a statement to the effect that the Borough was
retaining the right to approve any plan of the Authority, they also clearly stated that
the Authority was created pursuant to the Municipality Authorities Act of 1945. The
statutory powers granted to Authorities under that Act bring these Authority members
within the definition of "public official," and consequently within the restrictions that
apply to public officials under the Ethics Law.
In applying Section 3(a) of the Ethics Law, it is noted that the College would be
within the definition of "business" as set forth in the Ethics Law and above. First, the
definition of the term "business" as set forth in the Ethics Law is very broad. Novak,
Opinion No. 91 -009 (holding that the Pennsylvania State University (Penn State) is a
"business" as defined in the Ethics Law). As a corporation, the College is clearly within
that definition. Moreover, the submitted fact that the College is a non - profit
corporation would not disqualify it as a "business." The word "or" toward the end of
the definition of "business" is disjunctive, and the repeated use of the word "any"
precludes any interpretation that the final phrase "legal entity organized for profit"
modifies the initial word "corporation ": "Any corporation, ... Qr any legal entity
organized for profit." The clear and unambiguous statutory language is that any
corporation, including a non- profit corporation, is a "business." Soltis - Sparano, Order
No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96-
006).
Confidential Advice, 98 -557
May 19, 1998
Page 11
Since the College is a "business" as that term is defined in the Ethics Law, it is
clearly a business with which one of these public officials and the spouse of another
are associated.
Attorney F, in her capacity as a member of Council, is subject to Section 3(a)
of the Ethics Law. Given that her spouse is a tenured faculty member of the College,
the College is a business with which a member of her immediate family is associated.
Therefore, Attorney F would have a conflict of interest pursuant to Section 3(a) of the
Ethics Law in matters before Council which would financially impact upon the College,
including but not limited to matters involving the said revitalization of the Borough
business district such as the award of contracts by Council, the consideration of
zoning /rezoning requests and /or subdivision requests, and /or the modification of
business district boundaries.
Mr. H is a public official subject to Section 3(a) of the Ethics Law in his
capacity as a member of the Authority. In his private capacity, he is a Vice President
of the College, and therefore it is a business with which he is associated. Accordingly,
Mr. H would have a conflict of interest pursuant to Section 3(a) of the Ethics Law in
matters before the Authority which would financially impact upon the College,
including but not limited to matters involving the said revitalization of the Borough
business district such as the modification of business district boundaries.
In each instance of a conflict of interest, the above public officials would be
required to abstain from participation and to fully satisfy the disclosure requirements
of Section 3(j) as set forth above.
As for the other five public officials /employee, specifically Ms. J, Ms. R, Mr.
S, Ms. T and Mr. N, as noted above, each is subject to Section 3(a) of the Ethics Law.
However, as to each, the facts which you have submitted do not reveal any
relationship with the College or any other basis for a conflict of interest as defined in
the Ethics Law. Therefore, based upon the facts which you have submitted, these
public officials would not have a conflict of interest in matters involving the said
revitalization project in the Borough, conditioned upon the assumption the neither the
public officials /employee, members of their immediate families, nor businesses with
which they or members of their immediate families are associated would be financially
impacted.
Turning to Section 3(f) of the Ethics Law, the restrictions of that Section must
be observed when applicable. Based upon the facts which you have submitted, that
Section could be implicated as to Attorney F and Mr. H as to
contracting /subcontracting involving the College. The facts which you have submitted
do not indicate circumstances which would implicate Section 3(f) as to the other five
public officials identified above.
Based upon the above analysis, each of the two specific inquiries which you
posed has been addressed.
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: Conditioned upon the assumption that Committee C ( "the
Committee ") and the Planning Commission of Borough A ( "the Borough ") are in fact
purely advisory bodies with no power to expend public funds (other than to reimburse
personal expenses) or to otherwise exercise governmental power, members of these
Confidential Advice, 98 -557
May 19, 1998
Page 12
two bodies would not, as such, be considered "public officials" subject to the Ethics
Law. Therefore, the following seven individuals whose service is limited to the said
Committee and /or the Planning Commission would not be subject to the conflict of
interest restrictions of Section 3(a) or the contracting restrictions of Section 3(f) of the
Ethics Law: Mr. G; Mr.I; Attorney K; Mr. L; Mr. 0; Mr. P; and Mr. U.
Attorney F, Ms. J and Ms. R are public officials subject to the Ethics Law in ,
their capacities as members of Borough Council. Mr. S is a public official subject to the
Ethics Law in his capacity as Mayor of the Borough. Ms. T is a public official /public
employee subject to the Ethics Law in her capacity as the Borough Manager.
Attorney Q, would not, in his capacity as the Solicitor of Authority D ( "the
Authority "), be considered a "public official" or "public employee" subject to the Ethics
Law, conditioned upon the assumption that he is not an employee of the Authority but
rather is retained. However, j.j Solicitors are required to file Statements of Financial
Interests. Therefore, Attorney Q would be required to file Statements of Financial
Interests providing full disclosure as required by the Ethics Law, each year the
aforesaid position as Solicitor is held and the year following termination of service in
said position. Moreover, every "person" — including a Solicitor — is subject to Section
3(b) of the Ethics Law.
Those who serve as members of the Authority, specifically Mr. H and Mr. N,
would be considered "public officials" subject to the Ethics Law.
E College ( "the College ") would be within the definition of "business" as set
forth in the Ethics Law. The College is a business with which Mr. H and the spouse
of Attorney F are associated. Thus, each of these two public officials, Mr. H and
Attorney F, would have a conflict of interest pursuant to Section 3(a) of the Ethics
Law in matters before the Authority and Council respectively, which would financially
impact upon the College, including but not limited to matters involving the said
revitalization of the Borough business district such as the award of contracts by
Council, the consideration of zoning /rezoning requests and /or subdivision requests,
and /or the modification of business district boundaries. In each instance of a conflict
of interest, these public officials would be required to abstain from participation and
to fully satisfy the disclosure requirements of Section 3(j) as set forth above.
As for the other five public officials /employee, specifically Ms. J, Ms. R, Mr.
S, Ms. T and Mr. N, each is subject to Section 3(a) of the Ethics Law. However, as to
each, the facts which you have submitted do not reveal any relationship with the
College or any other basis for a conflict of interest as such as defined in the Ethics
Law. Therefore, based upon the facts which you have submitted, these five public
officials would not have a conflict of interest in matters involving the said revitalization
project in the Borough, conditioned upon the assumption the neither the public
officials /employee, members of their immediate families, nor businesses with which
they or members of their immediate families are associated would be financially
impacted.
As for Section 3(f) of the Ethics Law, the restrictions of that Section must be
observed when applicable. Based upon the facts which you have submitted, that
Section could be implicated as to Attorney F and Mr. H as to
contracting /subcontracting involving the College. The facts which you have submitted
do not indicate circumstances which would implicate Section 3(f) as to the other five
public officials identified above.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Law.
Confidential Advice, 98 -557
May 19, 1998
Page 13
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.
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.
S cerely,
t,„› i4°
Vincent J. DYopko
Chief Counsel