HomeMy WebLinkAbout99-575 BelloSalvatore F. Bello, Jr.
Pizonka, Reilley, Bello & McGrory, P.C.
144 East Dekalb Pike, Suite 300
King of Prussia, PA 19406
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 8, 1999
99 -575
Re: Conflict; Public Official /Employee; Chairman; Zoning Hearing Board; Solicitor;
Law Firm; Associate.
Dear Mr. Bello:
This responds to your letter of June 3, 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 et., presents any prohibition or restrictions upon a zoning hearing
board member where the solicitor to the board is an associate in the law firm of the
board member.
Facts: You are the Chairman of the Upper Merion Zoning Hearing Board (Board).
Your law firm recently merged with Joseph J. McGrory, Jr., Esquire, who is the
Solicitor for the Board.
The Board does not have the ability to pay any bills. The Solicitor sends all of
his bills to the Upper Merion Township Board of Supervisors for its approval. The
Board does not direct the Solicitor to take any action. The Solicitor's main functions
are to attend zoning hearings, to represent the Board at those hearings and to draft the
written opinions for the Board. The only area where there would be direct action taken
by the Board which would financially benefit the solicitor, and in turn your law firm,
is in the appointment of a solicitor. In compliance with the Ethics Act, you would
abstain from the discussion and voting on the solicitor's appointment, publicly declare
the reason for your abstention, and file a written statement of the reason for your
abstention in the minutes of the meeting.
You request advice as to whether there is a conflict to have the Solicitor for the
Board and a Board Member work in the same private law firm, and whether you may
continue to serve as Board Chairman.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) 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
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Bello, 99 -575
July 8, 1999
Page 2
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), (1 1).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As Chairman for Upper Merion Zoning Hearing Board, 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:
65 Pa.C.S. §1102.
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.
"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.
Bello, 99 -575
July 8, 1999
Page 3
Section 1 103(a) of the Ethics Act, prohibits a public official /public employee
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.
In addition, Sections 1103(b) and 1 103(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 1 103(f) of the Ethics Act provides as follows:
65 Pa.C.S. §1103(f).
Section 1 103. 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.
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
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
Bello, 99 -575
July 8, 1999
Page 4
(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
same, both orally and by filing a written memorandum to that effect with the person
recording the minutes or supervisor.
As to the specific questions you raise, the Ethics Act does not impose any
prohibition upon you in serving on the Board when an associate in your private law
firm is the Solicitor for the Board. However, Section 1103(f) of the Ethics Act requires
that in the future the position of solicitor must occur through an open and public bid
process assuming that the business with which you are associated, as that term is
defined under the Ethics Act, seeks to contract with the Board to provide legal services
as solicitor. In addition, you would have a conflict under Section 1 103(a) of the Ethics
Act as to the appointment of the solicitor, assuming that your law firm is one of the
bidders. If your law firm becomes solicitor you would have a conflict in any financial
matter relating to the solicitor. As to such conflicts, you must abstain and observe the
disclosure requirements of Section 1103(j).
Bello, 99 -575
July 8, 1999
Page 5
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
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the respective municipal code or the Rules of Professional Conduct.
Conclusion: As Chairman for Upper Merion Zoning Hearing Board, you are a
public official subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Although the Ethics Act would not prohibit
your serving as a Board Member where an associate in your private law firm is the
Solicitor for the Board, you would have a conflict under Section 1103(a) as to the
appointment of the solicitor or any financial matter involving the solicitor and must
abstain and comply with the disclosure provisions of Section 1103(j). If your law firm
seeks to apply in the future for the solicitor position with the Board, the requirements
of Section 1103(f) as outlined above must be satisfied. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1 107(1 1), 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.
Vincent J. Dopko
Chief Counsel