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Home My WebLink About97-514 IvancikBonnie Brimmeier, Esquire Dodaro, Kennedy & Cambest 1001 Ardmore Blvd. Suite 100 Pittsburgh, PA 15221 -5233 Dear Ms. Brimmeier: January 29, 1997 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 97 -514 Re: Conflict, Public Official /Employee, Chairperson, Water Authority Board, Certified Public Accountant, Providing Accounting Services to Former Client who is a Contract Customer of the Authority. This responds to your letters of December 11 and December 23, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon the Chairperson of a Water Authority Board as to providing accounting services to a former client who is currently a contract customer of the Water Authority. Facts: Barbara Ivancik (Ivancik) has authorized you to request an advisory from the State Ethics Commission on her behalf. Ivancik is the Chairperson of the Water Authority Board (Authority) and, in a private capacity, is also a Certified Public Accountant. Ivancik has been asked to perform professional accounting services for a former client who is currently a contract customer of the Authority with a 20 year agreement. The requested services are unrelated to the Authority and its relationship with the client/customer. Brimmeier /Ivancik 97 -514 January 29, 1997 Page 2 You state that as Solicitor you have advised Ivancik that she may not vote on issues conceming this customer /client but she may perform services for them. You request an advisory for clarification of this issue. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Chairperson of the Water Authority Board (Authority), Barbara Ivancik (Ivancik) is a public official as that term is defined under the Ethics Law, and hence she is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: 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 as follows: 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 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 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 Brimmeier /Ivancik, 97 -514 January 29, 1997 Page 3 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. In addition, Sections 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 officiaVemployee shall solicit or accept anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities Q) 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 goveming 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 goveming body have cast opposing votes, the Brimmeier /Ivancik 97 -514 January 29, 1997 Page 4 member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exdsts, Section 30) 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 applying Section 3(a) of Act 9 of 1989 to the instant matter, the Ethics Law would not prohibit lvancik from performing professional services to the client in that she would be conducting such activities in a private capacity and not as a public official. However, Ivancik as a public official would have a conflict as to any matters at the authority involving the client and must abstain as well as comply with the disclosure requirements of Section 30) of Act 9 set forth above. See, Kannebecker, Opinion 92 -010. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: •As Chairperson of the Water Authority Board (Authority), Barbara Ivancik (Ivancik) is a public official subject to the provisions of the Ethics Law. Although Ivancik may perform professional services in a private capacity to a contract customer of the Authority, lvancik as an Authority Member would have a conflict and could not participate as to any matters at the Authority involving the client. lvancik must observe the disclosure requirements of Section 3(j) of the Ethics Law noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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. Brimmeier /lvancik 97 -514 January 29, 1997 Page 5 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. Sincerely, Vincent J. Dopko Chief Counsel