HomeMy WebLinkAbout90-020 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
DATE DECIDED: December 6, 1990
DATE MAILED: December 7, 1990
90 -020
Re: Conflict, Public Official, City, Mayor, Boards, Commissions,
Commissioners, Representation, Clients, Business with Which
Associated, Appeals.
This confidential opinion is issued in response to your request
of September 18, 1990.
I. Issue:
Whether the Public Official and Employee Ethics Law imposes any
prohibition or restrictions upon board or commission members in
representing private clients before city agencies over which these
members sit on the boards or commissions which review appeals from
decisions of those agencies.
II. Factual Basis for Determination:
On behalf of the Mayor of the City of A an advisory opinion is
requested regarding the propriety of the conduct of certain board or
commission members who are appointed by the Mayor. A number of these
City boards have oversight powers with regard to the particular
functions of certain city departments. In some cases these members are
also professionals with expertise in the area of a board's function.
Since these board members may have outside employment representing
clients, the Mayor seeks guidance as to the propriety of contacts
between the board or commission members and the departments whose
decisions are reviewed by the member's board. The contacts do involve
specific matters affecting a private client of the board member or his
firm.
Two specific examples are proffered concerning boards which
exercise significant authority in holding hearings on applications of
the City Code. The first individual is a member of the City's Board
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of B which reviews orders of a city agency that finds violations of the
conditions of a license upon the filing of an appeal by the regulated
party. A significant portion of the appeals are from orders of the
City's Department of C since that department issues all licenses, makes
inspections and determines whether the regulated party is in compliance
with the conditions of the license or the terms of an ordinance or
regulation of that department. The Board of B holds hearings on
appeals and can affirm, modify or reverse an order in question. In the
first example, the board member is an attorney who is a member of a
large firm that represents clients before the City and in particular
the Department of C. Members and associates of the law firm also
represent clients before the Board of B, the Department of C and the
City. The board member does contact employees of the Department of C
or other city agencies with requests for action or information on
behalf of clients.
In the second example, the individual is a member of the City's
Board of D. That Board advises the Commissioner of the Department of
C regarding interpretations of the Building Code and regulations
relative to building safety and sanitation as well as suggesting
regulations and passing upon the worth of new and substitute
construction method and materials and the holding of public hearings
before recommending changes in standards and regulations. In addition,
the E Board also holds public hearings and makes recommendations on
petitions to the Department of C for variances from the City's Building
Code. The E Board member is an engineer whose firm designs
construction in the City and performs other services which are under
the inspection and supervision of the Department of C. This individual
contacts employees of the Department of C and other agencies with
requests for action or information on behalf of clients. The Mayor is
concerned about such contacts since the member's Board may ultimately
review the action taken below. Since the contacts cover a range from
requests for information to requests for reconsideration of decisions,
a concern is expressed that the contact with the employee below may
create a sense of intimidation "to view the request as an implied
demand that he act in the future and the interest of that client."
Contrariwise, it is questioned whether such contact could be a conflict
under Section 3(a) because even though there would be a pecuniary
benefit in representing the client, such contact would not constitute a
use of authority of office as that term is defined in the context of
Section 3(a) of the Ethics Law.
After setting forth the above two factual scenarios, a general
ruling is sought on such contacts regardless of whether a given matter
would later reach the Board of that individual. In this regard you
note that many such matters may be resolved below and never reach the
oversight Board. In the event that such a matter would reach the
Board, the affected board member would be required to disclose his
interest with regard to the client and disqualify himself from
participating in that matter. After expressing an opinion that the
restrictions as to representation under the Ethics Law are more
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restrictive upon public officials /employees after they leave
governmental service as opposed to the situation where they are in
governmental service, various provisions of the City's F Ordinance are
set forth. G permits municipal officers to have financial interests in
official decisions as long as the officer publicly discloses the
conflict and disqualifies himself from taking part in such action. H
limits representation by City officers or others in transactions
involving the City. However, Board members are considered part -time
officers and their service is governed by I which sets forth
restrictions on representation only as to matters which either have
been in the past the subject of action by the officer in question or
are presently pending before the Board or other municipal body in which
that officer serves. Neither of the conditions apply in this factual
scenario since the officer represents a client on matters before a
lower level department wherein matters have not reached the Board. You
ask whether such contacts between the Board members and City employees
would constitute a conflict. A post script is added regarding the
scope of the decision in Maunus v. State Ethics Commission, 544 A.2d
1324 (1988). If this Commission is unable to rule on the one Board
member because he is an attorney at law, advice is nevertheless
requested as to the other Board member who is an engineer.
III. Discussion:
As appointed board or commission members in the City of A, the
individuals are public officials as that term is defined in the Public
Official and Employee Ethics Law. Accordingly, they are subject to the
provisions of the Ethics Law and the restrictions therein are
applicable to them. The Ethics Law provides as follows:
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:
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
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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 or 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.
"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.
Section 3(b) and 3(c) of the Ethics Law 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 any
thing of monetary value based upon the understanding that the vote,
official action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these provisions of the law
not to imply that there has or will be any transgression thereof but
merely to provide a complete response to the question presented.
On the issue of whether a public official or employee may engage
in outside business activities, such activity in general is not
prohibited by the Ethics Law. Section 1(b) of the Ethics Law, 65 P.S.
§401(b); Pancoe, Opinion 89 -011. However, such employment may not be
adverse to or incompatible with the duties and responsibilities of the
public official /employee . Smith, Opinion 89 -010. In addition, the
public official /employee may not represent two interests which are in
conflict with each other. Miller, Opinion 89 -024.
Section 3(a) of the Ethics Law would prohibit a public
official /employee from using the authority of office for the
advancement of his own personal financial gain or business with which
he is associated and he would be prohibited from engaging in any
activities as a public official /employee to obtain a private pecuniary
benefit or advance the interests of the business with which he is
associated. In particular the public official /employee could not use
the telephone, postage, staff, equipment, research materials,
personnel or any other printed drafted materials as a means in whole
or part in carrying out private business activities nor could he,
during government working hours, solicit or promote such business
activities. Pancoe supra.
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Within the above parameters, the Board members could engage in
contacts on behalf of their firms, or clients before the Board of B or
the city's Board of E or other city departments or agencies other than
their own Board. It is expressly assumed that such contacts are done
in their professional capacity without reference or suggestion,
express or implied, as to their status as a Board member. However, as
to any matter as to which the individual or a member of his firm, the
business with which he is associated, has been involved in either
representing a client, a particular matter or some other matter which
is handled by the business with which the public official is
associated, the Ethics Law would prohibit the public official from
using confidential information or participating or having any
involvement regarding such matters as a board or commission member.
Miller, supra. Section 3(j) of the Ethics Law would require the
public official to publicly announce his abstention as well as the
reasons for said abstention and file a written memorandum to that
effect with the secretary recording the minutes of the meeting of the
Board.
As a postscript, we must address the concern which was raised
about our jurisdiction to pass upon the conduct of the attorney board
member given the decision in the Maunus Case. The judiciary has the
responsibility of regulating the conduct of lawyers in the practice of
law. Pa. Public Utilities Commission Bar Association v. Thornburgh,
498 Pa. 589, 450 A.2d 613 (1981). Although the one board member is an
attorney, the scope of our inquiry relates to his actions as a public
official as a board member. Such activities of that board member are
clearly with the jurisdiction of this Commission. Pollock, Opinion 89-
031.
Lastly, 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 Act has not been considered in that they do not
involve an interpretation of the Ethics Law. Specifically not
addressed is the applicability of the Rules of Professional conduct.
IV. Conclusion:
Appointed City Board members are public officials subject to the
provisions of the Ethics Law. The private law or engineering firms
with which said persons are employed constitute businesses with which
the public official are associated. Section 3(a) of the Ethics Law
would prohibit the board member from using confidential information or
from participating or voting in any matter before the Board involving
a client or matters which are handled by the firm, the business with
which he is associated. The disclosure requirements of Section 3(j)
of the Ethics Law must be satisfied. The public official would not be
prohibited from making contacts with subordinate bodies in his private
professional capacity representing clients provided he did not use the
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authority of office through his status as a board member to influence
a subordinate body. The public official could not use the public
facilities or personnel to further the business interests of the
business with which he is associated. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Law.
Pursuant to Section 7(10), the person who acts in good faith on
this opinion issued to him shall not be subject to criminal or civil
penalties for so acting provided the material facts are as stated in
the request.
This letter is a public record and will be made available as
such.
Finally, any person may request the Commission to reconsider its
Opinion. The reconsideration request must be received at this
Commission within fifteen days of the mailing date of this Opinion.
The person requesting reconsideration should present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
By the Commission,
Robert W. Brown,
Vice Chair