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HomeMy WebLinkAbout98-569 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 22, 1998 98 -569 Re: Conflict, Public Official /Employee, Borough Council Member, Engineer, Professional Land Surveyor, Business with which Associated, Private Clients. This responds to your letter of May 20, 1998 by which you requested a confidential advisory from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member who, in his private capacity, is employed by an engineering firm as an engineer /professional land surveyor, with regard to representing private clients before the borough council, the borough planning commission, and /or the zoning hearing board. Facts: As Solicitor for Borough A ( "Borough ") in County B, you seek an advisory on behalf of Mr. C who is one of the seven members of Borough Council. In his private capacity, Mr. Cis employed by Firm D ( "Firm ") in E as an Engineer /Professional Land Surveyor, specializing in land development. His duties include managing engineering services, preparing plans, and making presentations to both private and public entities on behalf of his or the Firm's clients. The F Fire Company ( "Fire Company ") is the duly- authorized provider of fire services to the Borough. The Fire Company seeks to build a new firehouse facility on property that is to be purchased. A formal subdivision /land development application is about to be presented to the Borough. You state that Mr. C intends to represent the Fire Company before the Borough's Planning Commission and Council for a fee. He has agreed to recuse himself from any discussion, deliberation or vote of Borough Council regarding the aforementioned application. You state that Mr. C also wants to represent a private developer in another matter. Mr. C would prepare an application and subdivision plans with regard to a hearing before both the Borough Planning Commission and Council, and, if necessary, before the Zoning Hearing Board. You seek a confidential advisory as to whether Borough Council Member C's proposed representation, in his private capacity, of the aforesaid clients before the Borough Council, Planning Commission and /or Zoning Hearing Board would constitute a conflict of interest under the Ethics Law. Confidential Advice, 98 -569 June 22, 1998 Page 2 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 As a Borough Council Member for Borough A ( "Borough "), Mr. C is a public official as that term is defined in the Public Official and Employee Ethics Law ( "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. "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. Confidential Advice, 98 -569 June 22, 1998 Page 3 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(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. 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, 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. Firm D is a business with which Mr. C is associated, based upon his employment status. Confidential Advice, 98 -569 June 22, 1998 Page 4 It is generally noted that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated and /or private clients. Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In each instance of a conflict of interest, the public official /public employee must abstain from participation in his public capacity. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order No. 809, the Commission recognized that the use of authority of office as defined in the Ethics Law includes, for example, discussing, conferring with others, and lobbying for a particular result. In each instance of 'a conflict of interest, the public official must also satisfy the disclosure requirements of Section 3(j) set forth above. Under the facts which you have submitted, Mr. C would clearly have a conflict of interest in matters before Borough Council which would result in a financial benefit to Mr. C, his private client(s), Firm D, and /or its private client(s). In each instance of a conflict of interest, Mr. C would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j). With regard to the other two bodies, specifically, the Borough Planning Commission and Zoning Hearing Board, Mr. C is not a member of either body, and the mere representation in a private capacity of private clients before those bodies would not constitute a conflict 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Borough Council Member for Borough A ( "Borough "), Mr. C is a public official subject to the provisions of the Ethics Law. Firm D is a business with which Mr. C is associated, based upon his employment status. Mr. C would have a conflict of interest in matters before Borough Council which would result in a financial benefit to Mr. C, his private client(s), Firm D, and /or its private client(s). In each instance of a conflict of interest, Mr. C would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j). With regard to the Borough Planning Commission and Zoning Hearing Board, Mr. C is not a member of either body, and the mere representation in a private capacity of private clients before those bodies would not constitute a conflict of interest under the Ethics Law. 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. This letter is a public record and will be made available as such. Confidential Advice, 98 -569 June 22, 1998 Page 5 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(1,). 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. incerely, v Vincent 7. Dopko Chief Counsel