HomeMy WebLinkAbout99-601 HalcovageMichael P. Halcovage, Esquire
240 Sunbury
Minersville, PA 17954
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 9, 1999
Re: Simultaneous Service; Third Class City; City Councilman; Lawyer /Solicitor for
Authorities or Entities Created by Them.
Dear Mr. Halcovage:
This responds to your letter of August 10, 1999, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any
prohibition or restrictions upon a City Councilman from simultaneously serving or being
employed as a lawyer /Solicitor for various authorities or other entities.
Facts: As a City Councilman for the City of Pottsville, Pennsylvania, you seek an
advisory from the State Ethics Commission.
In addition to being a City Councilman, you are an attorney. You have been asked
to provide legal services for a soon- to -be- formed Pennsylvania non - profit corporation
which is being established by the Pottsville Housing Authority. The Pottsville Housing
Authority is a housing authority formed under the Housing Authorities Law, 35 P.S.
§§1541 g ,sga. The members of the Authority are appointed by the mayor of the City
of Pottsville, a third class city, with approval of a majority of the members of council.
35 P.S. § 1545(b)(3). You would be providing legal services to this non - profit
corporation, not the Authority itself.
You ask whether, pursuant to the Ethics Act, there would be any impediment to
your acting as the lawyer /Solicitor for: (1) the aforesaid non - profit corporation; (2) the
Pottsville Housing Authority itself; (3) the Pottsville Hospital Authority; or (4) the
Pottsville Area Sewer Authority, which is a Pennsylvania joint municipal authority set up
by the City of Pottsville, the Borough of Palo Alto and the Borough of Port Carbon.
Discussion: As a Councilman for the City of Pottsville, you are a "public official" as
that term is defined in the Ethics Act and hence you are subject to the provisions of the
Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1.
Sections 1 103(a) and 1 103(j) of the Ethics Act provide:
Section 1103. Restricted activities.
FAX: (717) 787 - 0806 ® Web Site: www.ethics.state.pa.us ® e - mail: ethics @state.pa.us
99 -601
Halcovage, 99 -601
September 9, 1999
Page 2
65 Pa.C.S. §§1103(a), (j).
The following terms that pertain to conflicts of interest under the Ethics Act are
defined as follows:
Section 1102. Definitions.
65 Pa.C.S. §1102.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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.
"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.
Halcovage, 99 -601
September 9, 1999
Page 3
In applying the above provisions of the Ethics Act 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.
In reviewing the pertinent incompatibility provisions, a third class city councilman
would be ineligible to serve in any office, employment, or agency to which he would be
appointed by his own council. See, 65 P.S. §§12, 13. These particular provisions
would appear to be inapplicable to your scenario, because presumably you would be
appointed by the Boards of the authorities or other entities themselves to serve as their
lawyer /Solicitor.
It is further noted that per the Third Class City Code, the qualifications for serving
as a third class city councilman preclude, inter alia, serving as an officer or employee of
the city or any department thereof, or as a member or employee of a municipality
authority of which the city is a member. 53 P.S. §36001. Conditioned upon the
assumption that your position as lawyer /Solicitor for the various authorities and other
entities would not be structured so as to place you in any of these forbidden categories,
there would not appear to be any statutorily - declared incompatibility precluding
simultaneous service as a Pottsville City Councilman and as lawyer /Solicitor for the
authorities and other entities in question.
Turning to the question of conflict of interest, pursuant to Section 1103(a) of the
Ethics Act, 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 1103(a).
Absent a statutorily- declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act 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
1103(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 your simultaneous service as City
Councilman and lawyer /Solicitor for the aforementioned entities. Consequently, such
simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j).
However, in your capacity as a City Councilman, you would have a conflict of
interest in matters before City Council which would have a financial impact upon you.
Specifically, you would have a conflict of interest with regard to approving the
appointment /reappointment of Member(s) of the various entities that you would serve
as lawyer /Solicitor, because the Members of such bodies would determine whether you
would serve or continue to serve those entities. In analogous situations, the
Commission has noted that official action where such a circular relationship exists
presents a conflict of interest. See, Bassi, Opinion No. 86- 007 -R; Woodrinq, Opinion No.
Halcovage, 99 -601
September 9, 1999
Page 4
90 -001; see also, Roadcap, Advice No. 98 -531; Start/Leetsdale Borough, Advice No. 97-
527; Summerville, Advice No. 95 -509; and Mutschler, Advice No. 93 -613.
In each instance of a conflict of interest, you would be required to abstain fully
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. Specifically not addressed herein is the applicability of the Rules of
Professional Conduct.
Conclusion: As a Councilman for the City of Pottsville, you are a "public official"
subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a)
of the Ethics Act, simultaneously serve in the positions of City Councilman and as a
lawyer /Solicitor for: (1) a non - profit corporation that is being established by the Pottsville
Housing Authority; (2) the Pottsville Housing Authority itself; (3) the Pottsville Hospital
Authority; or (4) the Pottsville Area Sewer Authority, subject to the restrictions,
conditions and qualifications set forth above. In your capacity as a City Councilman, you
would have a conflict of interest with regard to approving the
appointment /reappointment of Member(s) of the various entities that you would serve
as lawyer /Solicitor. In each instance of a conflict of interest, you would be required to
abstain fully from participation and to fully satisfy the disclosure requirements of Section
1103(j) as set forth above. Lastly, the propriety of the proposed course of 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.
cerely,
Vincent J. Dopko
Chief Counsel