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HomeMy WebLinkAbout98-538 SharpF. Walter Bloom, III, Esq. Rosen, Rosen & Bloom 207 Seneca St., P.O. Box 6 Oil City, PA 1 6301 -01 80 Dear Mr. Bloom: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 31, 1998 98 -538 Re: Conflict, Public Official /Employee, Councilman, Third Class City, Council - Manager Form of Government, Employment Position, Police Department. This responds to your letters of February 19 and February 26, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a city councilman for a third class city operating under the council- manager form of government, where the councilman seeks to apply and undergo examination for a position in the city's police department. Facts: As Solicitor for the City of Oil City (Oil City), you seek an advisory from the State Ethics Commission on behalf of Edward E. Sharp, an Oil City Councilman. You state that Oil City is a Third Class City operating under the Council- Manager form of government. Mr. Sharp has informed Oil City that he desires to apply to the Civil Service Commission of Oil City for a position in the Oil City Police Department. You state that Mr. Sharp would first be required to take a written examination, which is objective and administered currently by an outside, non -Oil City related agency. Mr. Sharp would need to score 70% or higher and rank within the top six (6) on the written examination in order to continue in the application process. If Mr. Sharp would so qualify on the written examination, he would proceed to take the oral examination. You state that the oral examination is undertaken by, among others, the Chief of Police, who under the Council- Manager form of government in Oil City is nominated to his position by the City Manager but confirmed by majority vote of the City Council. In a telephone conversation with Commission staff on March 31, 1998, you submitted the following additional information for consideration with regard to your advisory request. Oil City's form of government is the Council- Manager form of government within the Optional Third Class City Charter Law, 53 P.S. §41101 gt seq. The "City Manager" serves as head of the Department of Safety, which includes the Police Department. Council itself is not in charge of the day -to -day operations of the Police Bloom, 98 -538 March 31, 1998 Page 2 Department. In addition, Council does not itself deal with personnel problems; rather, such problems are handled by the City Manager. However, Council does have the power to appoint /remove from office the City Manager. You state that there are no issues involving the City Manager, which are presently pending or expected to come before Council. Likewise, there are no non - routine issues involving the Chief of Police which are pending or expected to arise. With regard to the hiring for the position in question, following the examination process, the City Manager will formally nominate to Council a particular person. Council will then vote collectively as to that nominee. Other than that vote, Council will play no role with regard to the hiring. Additionally, you state that Council does not have access to confidential information regarding the application process. Finally, you state that if Mr. Sharp would be the successful applicant, he would resign from City Council. It is not his intention to simultaneously serve as a Council member and as an employee of the City's Police Department. Based upon the above, you ask for an advice of counsel as to whether Mr. Sharp would have a conflict of interest in pursuing the position of employment with the Oil City Police Department. 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 City Councilman for Oil City, Pennsylvania, Edward E. Sharp is a public official as that term is defined in the Public Official and Employe Ethics Law ( "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 Bloom 98 -538 March 31, 1998 Page 3 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 P.S. §402 (Emphasis added). 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. Bloom 98 -538 March 31, 1998 Page 4 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; (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. Bloom 98 -538 March 31, 1998 Page 5 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 circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Clearly, in his capacity as a City Councilman, Mr. Sharp would have a conflict of interest as to any use of the authority of his position as a City Councilman (including but not limited to the actual vote of Council as to whether to hire the individual nominated by the City Manager), or as to any use of confidential information which he might have access to by being a City Councilman, so as to advance the prospects of his employment with the City. Moreover, Mr. Sharp would have a conflict of interest as to persons or entities who would be involved in the hiring process, such as: the outside agency which administers the written examination; the City Manager; and the Chief of Police. Should any matter arise before City Council involving such a person or entity, Mr. Sharp would have a conflict of interest as to such matter(s) based upon his pursuit of the employment position with the City's Police Department. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion No. 86- 007 -R, and Woodring, Opinion No. `90 -001. In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia, that a County Commissioner (Edward Peluso) could not enter into a lease with a municipal authority, where one of the members of the authority (Norman Carson) was a county employee directly responsible to the commissioners of the county, unless the execution of the lease was accomplished after an open and public process, with the authority member abstaining from participating in the review and award of said lease, and the county commissioner abstaining from participating in any matter relating to the authority member in his position as a county employee. The Commission stated, inter .. we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates to a financial interest which he may have. See, Welz 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. See, Bassi, 86 -007 at 3. The Commission further stated: Mr. Peluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Peluso a lease which results 3loom 98 -538 March 31, 1998 Page 6 jj at 4. in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Peluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. In Woodrinq, Opinion No. 90 -001, the State Ethics Commission reviewed a similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority, had applied to the City for a rehabilitation grant through the Federal Rental Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed as the Executive Director of the Redevelopment Authority (chaired by Woodring) also served as the Community Development Coordinator for Sunbury. In the latter capacity, Pick was administrator in charge of the Program for the City. Pick's functions included administering the Program, reviewing all applications, and determining eligibility. The Commission stated: . we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development Coordinator for the city. In particular, the potential exists, given the employer- employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable light than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi Opinion 86 -007. In addition, Section 3(j) of the Ethics Law would require you to publicly note that you would have a conflict as to any matter involving Mr. Pick. In addition, you must file a written memorandum to that effect with the person responsible for recording the minutes. Woodrinq Opinion No. 90 -001 at 6. Thus, based upon the Bassi and Woodrinq rulings discussed above, Mr. Sharp would have a conflict of interest pursuant to Section 3(a) of the Ethics Law in matters pertaining to those persons or entities who would play a role in determining whether he would be hired by Oil City for the employment position with its Police Department. In each instance of a conflict of interest, Mr. Sharp would be required to abstain from participation and to fully satisfy the disclosure requirements• of Section 3(j) as set forth above. Finally, with regard to Section 3(f) of the Ethics Law, it is clear that the requirements of Section 3(f) would have to be observed as to any hiring of Mr. Sharp to an employment position with his own governmental body. Certainly, the value of such a contract between Mr. Sharp and the City would exceed $500 and would not involve any current public employment position with the City. Bloom, 98 -538 March 31, 1998 Page 7 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 City Councilman for Oil City, Pennsylvania, Edward E. Sharp is a public official subject to the provisions of the Ethics Law. In his capacity as a City Councilman, Mr. Sharp would have a conflict of interest as to any use of the authority of his position as a City Councilman, or as to any use of confidential information which he might have access to by being a City Councilman, so as to advance the prospects of his employment with the City. Mr. Sharp would have a conflict of interest as to persons or entities who would be involved in the hiring process, such as: the outside agency which administers the written examination; the City Manager; and the Chief of Police. Should any matter arise before City Council involving such a person or entity, Mr. Sharp would have a conflict of interest as to such matter(s) based upon his pursuit of the employment position with the City's Police Department. In each instance of a conflict of interest, Mr. Sharp would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth 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. 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. Surely, Vincent J. Dopko Chief Counsel '40 ortio