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HomeMy WebLinkAbout99-636-C ReillySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 26, 2000 Andrew J. Reilly, Esquire Swartz, Campbell & Detweiler 115 N. Jackson Street 99 -636 -C Media, PA 19063 Re: Conflict; Public Official /Employee; County Councilman; Redevelopment Authority; County Economic Development Oversight Board; Law Firm; Business With Which Associated. Dear Mr. Reilly: This responds to your letter of December 22, 1999 by which you requested clarifying advice from the State Ethics Commission. Iss : Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 I seg., presents any prohibition or restrictions upon a county councilman who is a partner in a law firm that represents the county redevelopment authority and the county economic development oversight board, where the county council: (1) appoints the members of the redevelopment authority, approves its powers, and pays its expenses; and (2) budgets and funds the operations of the county economic development oversight board. Facts: By FAX dated vember 9, 1999, you initially sought an advisory from the State Ethics Commission regard to the restrictions that would be imposed upon you as a county councilman w re you are a partner in a law firm that represents the county redevelopment authority and the county economic development oversight board. In response to your request, Reilly, Advice No. 99 -636 was issued to you on December 14, 1999, which Advice is incorporated herein by reference. You now seek clarification regarding a factual statement in the said Advice which you did not provide in your letter of November 9, 1999. Specifically, your November 9, 1999 letter does not explicitly state that the members of the Delaware County Redevelopment Authority (RDA) and the Board of Delaware County Economic Development Oversight Board (EDOB) are appointed by County Council, and that the expenses of the EDOB, like those of the RDA, are forwarded to County Council for payment. You believe that these additional facts are implied by the fourth paragraph of your November 9, 1999 letter and assumed by the Commission, as evidenced by page 6 of the Advice. You assume that they will not change the conclusion that 1) the Ethics Act would not preclude your service as a Delaware County Councilman merely FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Reilly, 99 -636 -C January 26, 2000 Page 2 because your law firm represents the EDOB; 2) you should not vote to appoint members to the EDOB or to approve your firm's bills; and 3) in each instance of a conflict of interest, you should abstain from participation and and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. You seek confirmation that these additional facts will not change the conclusion reached in Reilly, supra. 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), (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 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As noted in Reilly, Advice No. 99 -636, upon taking office as a Councilman for Delaware County, you will be a public official as that term is defined in the Ethics Act, and hence you will be subject to the provisions of the Act. In that Reilly, Advice No. 99 -636 is incorporated herein by reference, the quotations and commentary as to the Ethics Act will not be repeated. The only question that is to be addressed in this clarification of Advice is whether the conclusion reached in Reilly, supra will remain the same given the additional submitted facts. You have factually clarified that the board members of the RDA and the EDOB are appointed by the County Council and that the expenses of the EDOB, like those of the RDA, are forwarded to County Council for payment. Based upon these additional facts, you are advised as follows. The Ethics Act would not preclude your service as a Delaware County Councilman merely because your law firm represents the RDA and the EDOB. However, pursuant to Section 1103(a) of the Ethics Act, as a public official, you would be prohibited from using the authority of your office as a member of the Delaware County Council, or any confidential information you would have access to by being a County Councilman, for the private pecuniary benefit of yourself, a member of your immediate family, or a business with which you are associated. Swartz, Campbell & Detweiler is a business with which you are associated; therefore, pursuant to Section 1103(a), you would be prohibited from participating in matters before County Council that would result in a financial gain to your firm, such as voting to approve your firm's bills. As stated in Reilly, Advice No. 99 -636, in your capacity as a member of the Delaware County Council, you would have a conflict of interest with regard to appointing /reappointing Member(s) of the RDA or EDOB because your law firm is appointed /retained by these bodies to serve as their Counsel. 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; Woodring, Opinion No. 90 -001. 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) of the Ethics Act as set forth above. To the extent that your firm contracts with Delaware County, the restrictions of Section 1103(f) of the Ethics Act must be observed. Reilly, 99 -636 -C January 26, 2000 Page 3 On a final note, as to your statement that the above additional facts "are implied by the fourth paragraph of [your] letter of November 9," a review of said paragraph reflects that this is not the case. Paragraph 4 of your letter does not imply that the County Council appoints the members of the RDA and the EDOB. Nevertheless, in Reilly, Advice 99 -636 we anticipated these missing facts as evidenced by the conclusion that "you would have a conflict of interest in appointing members to the Delaware County Redevelopment Authority or the Delaware County Economic Development Oversight Board, because these bodies appoint /retain your firm as their Counsel." See, Reilly, supra at 6 (Emphasis added). While we recognize the Commission's obligation to issue advisories as well as supplemental or clarifying advices to public officials /public employees under certain narrow circumstances, it is an unsuitable use of this Commission's limited resources and small staff to issue a clarifying advice under these circumstances where the clarifying advice is not warranted. 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 Rules of Professional Conduct. Conclusion: Upon taking office as a Councilman for Delaware County, you will be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seg. The law firm of Swartz, Campbell & Detweiler, of which you are a partner, is a business with which you are associated. Pursuant to Section 1 103(a) of the Ethics Act, you would be prohibited from using the authority of your office as a member of the Delaware County Council, or any confidential information you would have access to by being a County Councilman, for the private pecuniary benefit of Swartz, Campbell & Detweiler. The Ethics Act would not preclude your service as a Delaware County Councilman merely because your law firm represents the Delaware County Redevelopment Authority and the Delaware County Economic Development Oversight Board. However, pursuant to Section 1103(a) of the Ethics Act, you should not participate in voting to approve your firm's bills. You would specifically have a conflict of interest in appointing members to the Delaware County Redevelopment Authority or the Delaware County Economic Development Oversight Board, because these bodies appoint /retain your firm as their Counsel. 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) of the Ethics Act as set forth above. To the extent that your firm contracts with Delaware County, the restrictions of Section 1103(f) of the Ethics Act must be observed. 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. Reilly, 99 -636 -C January 26, 2000 Page 4 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 b the the Omission will be scheduled and a formal Opinion will be is Y 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. rely, incent J. Dopko Chief Counsel ark,