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