HomeMy WebLinkAbout99-567 DelucaJoseph V. Deluca
1002 Center Street
Nanticoke, PA 18634 -1999
Dear Mr. Deluca:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1-800- 932 -0936
ADVICE OF COUNSEL
July 1, 1999
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
99 -567
Re: Simultaneous Service; Public Official /Employee; Township Commissioner; Sewer
Authority Member; Immediate Family; Son; Solicitor for Authority.
This responds to your letters of May 19 and May 25, 1999 by which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 el seq., presents any prohibition or restrictions upon a Township
Commissioner with regard to simultaneously serving as a Member of the local Sewer
Authority, particularly where the Township Commissioner's son is the Solicitor for the
Sewer Authority.
Facts: As President of the Newport Township Board of Commissioners, you seek
an advisory form the State Ethics Commission.
Newport Township is a first -class township governed by a five - member Board
of Commissioners. You state that the Township also has a separate five - member
Sewer Authority, the "Newport Township Sewer Authority" ( "Sewer Authority "). The
Board of Commissioners appoints members to the Sewer Authority and fills vacancies
on the Authority. However, the Board of Commissioners and the Sewer Authority
"operate independently of each other" and each has its own Solicitor.
You ask whether it would be a conflict of interest for you to simultaneously
serve as a member of the Newport Township Board of Commissioners and as a
member of the Newport Township Sewer Authority, particularly where your son is the
Solicitor for the Sewer Authority.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (11).
Deluca, 99 -567
July 1, 1999
Page 2
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As a Member and President of the Newport Township Board of Commissioners,
you are a public official as that term is defined in the Ethics Act, and hence you are
subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee'shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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.
"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.
Deluca, 99 -567
July 1, 1999
Page 3
65 Pa.C.S. §1102.
"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. The term 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 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(f) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(f) Contract. - -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.
65 Pa.C.S. §1103(f).
Section 1 103(f) does not operate to .make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official /public
Deluca, 99 -567
July 1, 1999
Page 4
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 1103(f) requires that
an "open and public process" be observed as to the contract with the governmental
body. Pursuant to Section 1103(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 1103(f) of the Ethics Act 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 1 103(j) of the Ethics Act provides as follows:
Section 1 103. Restricted activities.
(j) Voting conflict. - -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.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(j) requires the public
official /employee to abstain and to publicly disclose the abstention and reasons for
Deluca, 99 -567
July 1, 1999
Page 5
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 Act, 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 Act to the instant matter, first as
to the question of simultaneous service, it is initially noted that the General Assembly
has the constitutional power to declare by law which offices are incompatible. Pa.
Const. Art. 6, §2. There does not appear to be any statutorily - declared incompatibility
precluding simultaneous service in the positions in question.
Turning to the question of conflict of interest, 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,
a member of his immediate family, or a business with which he or a member of his
immediate family is associated.
Where simultaneous service would place the public official /public employee in
a continual state of conflict, such as where in one position he would be accounting to
himself in another position on a continual basis, there would be an inherent conflict
(See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would
appear to be impossible, as a practical matter, for the public official /public employee
to function in the conflicting positions without running afoul of Section 3(a).
Absent a statutorily- declared incompatibility or an inherent conflict under
Section 3(a), the Ethics Law would not preclude an individual from simultaneously
serving in more than one position, but in each instance of a conflict of interest, the
individual would be required to abstain and to satisfy the disclosure requirements of
Section 3(j) as set forth above.
In this case, based upon the facts which have been submitted, there does not
appear to be an inherent conflict that would preclude simultaneous service as a
Township Commissioner and as a Member of the Sewer Authority. Consequently,
such simultaneous service would be permitted within the parameters of Sections 3(a)
and 3(j).
With regard to the fact that your son is the Solicitor for the Sewer Authority,
you are advised as follows.
The mere fact that a member of your immediate family serves as Solicitor for
the Sewer Authority would not preclude you from serving as a Member of the Sewer
Authority. However, there would be instances where a conflict would arise for you,
specifically, where the use of the authority of your office as a Sewer Authority
Member would result in a private pecuniary benefit for- -your son and /or his firm. An
obvious example would be in matters pertaining to the retention of your son or his firm
as Solicitor. In each instance of a conflict of interest, you would be required to abstain
from participation and to fully satisfy the disclosure requirements of Section 1 103(j)
as set forth above.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
Deluca, 99 -567
July 1, 1999
Page 6
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: As a Member and President of the Newport Township Board of
Commissioners, you are a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "),' 65 Pa.C.S. §1101 gl seq. You may,
consistent with Section 1103(a) of the Ethics Act simultaneously serve as a Member
and President of the Newport Township Board of Commissioners and as a Member of
the Newport Township Sewer Authority. The mere fact that your son, a member of
your immediate family, serves as Solicitor for the Sewer Authority would not preclude
you from serving as a Member of the Sewer Authority. However, there would be
instances where a conflict would arise for you, specifically, where the use of the
authority of your office as a Sewer Authority Member would result in a private
pecuniary benefit for your son and /or his firm. In each instance of a conflict of interest,
you would be required to abstain from participation and to fully satisfy the disclosure
requirements of Section 1103(j) as set forth above. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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.
erely,
Vincent J. opko
Chief Counsel