Loading...
HomeMy WebLinkAbout97-601 LaSotaCalvin J. Webb, II, Esquire Smorto, Persio, Webb & McGill 129 South Center Street PO Box 239 Ebensburg, PA 15931 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 31, 1997 97 -601 Re: Conflict, Public Official /Employee, Borough, Council Member, Business with which Associated, Employee, Municipal Engineer, Business with which Associated. Dear Mr. Webb: This responds to your letter of July 10, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of Borough Council who is also employed by the firm which serves as Municipal Engineer as to his participation in matters before Borough Council involving the Municipal Engineer. Facts: As Solicitor for the Borough of Patton, Cambria County, you have been authorized by David LaSota (LaSota) to request an advisory from the State Ethics Commission on his behalf. LaSota currently serves as a Councilperson in Patton Borough, having been elected to that position beginning January, 1996. LaSota is also an employee of L. Robert Kimball & Associates, Inc. (Kimball), an engineering firm, but has no ownership interest in that firm. For approximately five years, Kimball has been employed by the Patton Borough Municipal Authority and Patton Borough as the municipal engineer. You state that other than a 2 -3 year interim period when another engineering firm serviced the Borough, Kimball has served as municipal engineer for an extended period of time. You state that LaSota abstains from all votes applicable to Kimball with full disclosure of his employment relationship with that firm. Webb /LaSota, 97 -601 July 31, 1997 Page 2 Kimball is involved in negotiating a Department of Environmental Protection Consent Order and Agreement applicable to waste water treatment and the sewage collection system in Patton Borough. It is contemplated that the municipality will be required to pursue Pennvest funding and /or bond issues and private funding to modernize the waste water treatment and sewage collection system. You state that any contract awarded will be through an open and public services request process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. LaSota requests an advisory in order to avoid any potential funding disruptions in the future. 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 a Councilperson for Patton Borough, LaSota is a public official as that term is defined under the Ethics Law, and hence he 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 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 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. Webb /LaSota, 97 -601 July 31, 1997 Page 3 "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 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 official /employee 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(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Section 3(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; Webb /LaSota, 97 -601 July 31, 1997 Page 4 (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. In each instance of a conflict, Section 3(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 Law, 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 Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public officials /public Webb /LaSote, 97 -601 July 31, 1997 Page 5 employees from outside business activities or employment; however, the public official /public employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. A public official /public employee must exercise caution so that his private business activities do not conflict with his public duties. Crisc(, Opinion 89 -013. Thus, a public official /public employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /public employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. Examples of the above restrictions are that a public official not use the authority of office by advancing the interests of his private employer in terms of its appointment as municipal engineer, awarding special contracts to such business or eliminating competing engineering firms so as to insure that the engineering firm in which he is employed receives such contracts. Pepper, Opinion 87 -008. In the event that his private employer or business has a matter pending before his governmental body or if he as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that he be removed from that process. 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 a Councilperson for Patton Borough, LaSota is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a Borough Councilmember would have a conflict as to the municipal engineering firm in which he is employed in that such firm is a business with which he is associated. In matters involving the engineering firm, the Councilmember must recuse himself and observe the disclosure requirements of Section 3(j) of the Ethics Law. The conditions of Section 3(f) of the Ethics Law must be satisfied. 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. .4 personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Webb /LaSota 97 -601 July 31, 1997 Page 6 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. X29✓" Vincent J.S. pko Chief Counsel