Loading...
HomeMy WebLinkAbout99-004 ConfidentialOPINION OF THE COMMISSION Before: Austin M. Lee, Vice Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: 11/22/99 DATE MAILED: 12/7/99 99 -004 Re: Conflict, Public Official, Construction Project, Business, Investor, Attorney, PennDOT. This Opinion is issued in response to your confidential advisory request on October 29, 1999. I. ISSUE: Whether the Public Official and Employee Ethics Act imposes any prohibition or restrictions upon a public official who as a private attorney represents a developer on a highway interchange project and may invest in a business that could be benefitted by the project. II. FACTUAL BASIS FOR DETERMINATION: You are an attorney and an associate of a law firm wherein you and other attorneys represent a developer on a project concerning the construction of a proposed new interchange. This interchange is not located in A. You state that this new interchange would benefit a number of individuals and proposed businesses including one in which you have an opportunity to become a potential investor. In all of the meetings and conversations you have had with PennDOT regarding this interchange, you have advised all parties that you were present in your capacity as an attorney and not as an elected official. You state that you will continue to make such disclosures at any future meetings. It is your understanding that B. You do not anticipate that any other issues regarding this project will come before the body to which you have been elected. You do not serve in any capacity that would oversee PennDOT or any implementation of this project. You ask if the above working arrangement or your investment in one of the companies which may benefit from the construction of this interchange poses any conflicts under the Ethics Act. There are presently C. You request that any reference with specificity to D in the issued opinion be deleted because it might identify you as the individual initiating this confidential advisory request. By letter dated November 2, 1999, you were notified of the date, time, and location of the public meeting at which your request for an advisory Opinion was to be considered. Confidential Opinion, 99 -004 December 7, 1999 Page 2 III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and (11) 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, this 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 a E to D, you are a public official as that term is defined under the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(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. "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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: Confidential Opinion, 99 -004 December 7, 1999 Page 3 Section 1103. 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 applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position C or confidential information obtained by being in that position C for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. Under the facts which you have submitted, Section 1103(a) of the Ethics Act would not preclude such private business activity subject to the restrictions and qualifications as noted above. In this regard, we note that the Preamble of the Ethics Act specifically recognizes that public officials /employees may have outside business interests. See, 65 Pa.C.S. 1101(b). However, the public official /employee may not use the authority of office for the private pecuniary benefit of himself or a business with which he is associated. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced Confidential Opinion, 99 -004 December 7, 1999 Page 4 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. 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. IV. CONCLUSION: The Ethics Act does not prohibit a public official when he acts in the capacity of a private attorney from representing a developer on a highway interchange project or investing in a business that could be benefitted by the project. The public official /employee may not use the authority of office for the private pecuniary benefit of himself or a business with which he is associated. Pursuant to Section 1107(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, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Austin M. Lee Vice Chair