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HomeMy WebLinkAbout98-616 MurphyThomas R. Murphy 318 Lyndwood Ave. Wilkes- Barre, PA 18702 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 30, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.Da.us 98 -616 Re: Conflict; Public Official /Employee; Chairman; Township Commissioner; Accounts Manager; Business with which Associated; Budget; Authority, Appointment. Dear Mr. Murphy: This responds to your letter of October 28, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon the involvement of a chairman of a township board of commissioners, who is employed by a private garbage hauling business, in soliciting bids from private businesses to provide garbage hauling services to the township or in appointing individuals to a sanitary authority board. Facts: You are the Chairman of the seven - member Board of Commissioners of Hanover Township ( "Township "), a First Class Township. In a private capacity, you have been employed since May, 1998 as an Accounts Manager by J.P. Mascaro & Sons ( "Mascaro "), Wyoming Valley Division, a private garbage hauling business. At some point, the budget for Township garbage collection became an issue during a budget deliberation and the Commissioners decided to seek bids from private garbage haulers in an effort to "abandon the garbage collection business altogether." The issue of garbage collection was subsequently brought up at a public meeting of the Board on October 27, 1998, at which your involvement in the process was challenged as being a conflict of interest under the First Class Township Code, §1811. You have also been challenged regarding your participation in a vote to appoint a Township representative to the Wyoming Valley Sanitary Authority ( "Authority ") because of your employment by Mascaro which is in the garbage hauling business. You ask for an advisory from the State Ethics Commission as to whether your employment with Mascaro would preclude your involvement in a vote as to whether bids should be solicited by the Township from private businesses to provide garbage hauling services. In addition, you ask whether your position with Mascaro would preclude your involvement in the appointment of an individual as a Township representative to the Authority. Murphy, 98 -616 November 30, 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. Second, it is 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. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As the Chairman of the Board of Commissioners of Hanover Township, you are a public official as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence you are 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. Murphy, 98 -616 November 30, 1998 Page 3 "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. "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. 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. 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: Murphy, 98 -616 November 30, 1998 Page 4 (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 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 instant matter, 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 Murphy, 98 -616 November 30, 1998 Page 5 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. The fact that you are employed by Mascaro in and of itself would not create a conflict under Section 3(a) as to the issue of whether to seek bids from private garbage haulers. You would have a conflict of interest on issues involving Mascaro since Mascaro as your employer is a "business with which associated" as that term is defined under the Ethics Law. 65 P.S. 402. For example, you could not participate if the issue arose as to whether to award the Township contract for garbage collection to Mascaro. Another example of a conflict would be a situation where the Township contract would either be awarded to Mascaro or to another bidder, in which case you could not participate to eliminate the competitive bidder thereby assuring that Mascaro would obtain the contract. Again, it is not suggested that you would engage in such conduct; the above examples are provided to illustrate the application of Section 3(a). Similarly, the fact that you are employed by Mascaro would not, in and of itself, create a conflict as to your voting on a Township appointment. An example where you would have a conflict would be if the appointee is a member of your immediate family as that term is defined under the Ethics Law. 65 P.S. 402. In any instances of conflict of interest, you could not participate and must observe the disclosure requirements of Section 3(j) of the Ethics Law 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 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 First Class Township Code. Conclusion: As the Chairman of the Board of Commissioners of Hanover Township, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, your employment by J.P. Mascaro & Sons ( "Mascaro "), a garbage hauling business, in and of itself would not create a conflict of interest on your part on issues involving appointments to the Sanitary Authority Board or on the issue of whether the Township should have garbage collection done by a private garbage hauling business. You would have a conflict involving matters pending before the Township Board concerning Mascaro. In such instances of conflict, the requirements of Section 3(j) must be observed as well as Section 3(f) to the extent possible. 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. 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. Murphy, 98 -616 November 30, 1998 Page 6 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. erely, incent J . opko Chief Counsel