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HomeMy WebLinkAbout02-510 DiSalleRichard DiSalle, Esquire Rose, Schmidt, Hasley & DiSalle, P.C. 1000 Oliver Building Pittsburgh, PA 15222 -2310 Dear Mr. DiSalle: ADVICE OF COUNSEL January 29, 2002 02 -510 Re: Conflict; Public Official /Employee; Chairman; County Commissioners; Consultant for Private Company; Sale of Private Business. This responds to your letter of December 26, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a chairman of a county board of commissioners as to serving as a consultant for a company that will purchase his private business. Facts: As Solicitor for Washington County ( "County "), you seek an advisory on behalf of John P. Bevec ( "Bevec "), Chairman of the Board of County Commissioners for Washington County, Pennsylvania. Prior to Bevec's election in November 1999, he owned and operated a printing business known as Bevec Printing Associates, Inc. Bevec continued to operate this business throughout his first two years in office. You state that at no time during those two years did Bevec or his printing company do any business, directly or indirectly, with the County. Bevec has recently entered into negotiations for the sale of Bevec Printing Associates, Inc. As part of the transaction, Bevec will be engaged as a consultant for the purchaser, which from the submitted facts, appears to be a printing company. You state that the agreement will provide that Bevec, as consultant for the purchaser, will fully comply with the Ethics Act. You further state that the purchaser will not do any business, directly or indirectly with the County. You seek guidance as to any conflicts that may arise out of Bevec serving as a consultant for a printing company while also serving as a County Commissioner. DiSalle- Bevec, 02 -510 January 29, 2002 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(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, 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 Chairman of the Board of County Commissioners for Washington County, John P. Bevec ( "Bevec ") is a public official as that term is defined in the Ethics Act, and hence Bevec is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 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: § 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. DiSalle- Bevec, 02 -510 January 29, 2002 Page 3 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(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 1103(j) of the Ethics Act provides as follows: §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 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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, 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 employee use the authority of his public position - or confidential information obtained by being in that position - for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89- DiSalle- Bevec, 02 -510 January 29, 2002 Page 4 011. 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. It is clear that Bevec Printing Associates, Inc. is a business with which Bevec, as its owner, is associated. Therefore, pursuant to Section 1103(a) of the Ethics Act, Bevec would have a conflict of interest as to matters before the Board of County Commissioners that would financially impact himself or Bevec Printing Associates, Inc. Further, since a business relationship would exist between Bevec, as consultant, and the purchaser, Bevac would have a conflict of interest as to matters before the Board of County Commissioners involving the purchaser. See, Snyder v. State Ethics Commission, 686 A2d. 843 (Pa. Commw. 1996). In each instance of a conflict, Bevec would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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. Conclusion: As Chairman of the Board of County Commissioners for Washington County, John P. Bevec ("Bevec ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Bevec Printing Associates, Inc. is a business with which Bevec, as its owner, is associated. Pursuant to Section 1103(a) of the Ethics Act, Bevec would have a conflict of interest as to matters before the Board of County Commissioners that would financially impact himself or Bevec Printing Associates, Inc. Further, since a business relationship would exist between Bevec, as consultant, and the purchaser, Bevac would have a conflict of interest as to matters before the Board of County Commissioners involving the purchaser. In each instance of a conflict, Bevec would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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. 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 DiSalle- Bevec, 02 -510 January 29, 2002 Page 5 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. Sincerely, Vincent J. Dopko Chief Counsel