HomeMy WebLinkAbout01-567 MongilloFrancis X. Dillon, Esquire
Begley, Carlin & Mandio
680 Middletown Boulevard
P.O. Box 308
Langhorne, PA 19047 -0308
Dear Mr. Dillon:
ADVICE OF COUNSEL
June 29, 2001
01 -567
Re: Conflict; Public Official /Employee; Township; Supervisor; Immediate Family
Member; Son; Plumber; Developer; Business Relationship; Vote.
This responds to your letter of June 1, 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 township
supervisor as to voting on an application for a project submitted by a developer for whom
the supervisor's son performed plumbing work in the past on a different project.
Facts: As Solicitor for Middletown Township, you seek an advisory on behalf of
Raymond Mongillo ( "Mongillo "), a Township Supervisor.
Mongillo's son is a plumber who did plumbing work on a newly constructed single
home for a developer several years ago. As a result of the son's work for the developer,
Mongillo abstained from voting on a significant development project in the Township.
Mongillo's son has not done any work for the developer for the last two years.
The developer has submitted an application for another significant project in the
Township, which application is now pending before the Township. You ask whether
Mongillo would be permitted to vote on the project given the fact that his son has not
worked for that developer for the last two years and will not be working for the developer
in the future.
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 requester has submitted. In issuing the advisory based upon
the facts which the requester 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
Dillon /Mongillo 01 -567
June 29, 2001
Page 2
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 Supervisor for Middletown Township, Raymond Mongillo ( "Mongillo ") is a
public official as that term is defined in the Ethics Act, and hence Vlongillo is subject to
the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
41103. 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.
"Immediate family." A parent, spouse, child, brother
or sister.
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 11030) of the Ethics Act provides as follows:
§1103. Restricted activities.
Dillon /Mongillo 01 -567
June 29, 2001
Page 3
(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 11030) 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, pursuant to
Section 1103(a) of the Ethics Act, 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. Mongillo's son is a member of his
immediate family. Hence, Mongillo would have a conflict and could not participate in
matters that would result in a financial gain to himself or his son. Further, as to any
conflict, Mongillo would be required to observe the disclosure requirements of Section
11030) of the Ethics Act.
Having established the above principles, your specific inquiry shall now be
addressed.
You state that Mongillo's son performed plumbing work for the developer several
years ago, but has not performed work for the developer for the last two years. You
further state that the son will not perform work for the developer in the future. Given that
Mongillo's son has not done work for the developer in the last two years and will not be
working for the developer in the future, Mongillo would not have a conflict as to voting on
the developer's project, which is pending before the Township.
Dillon /Mongillo 01 -567
June 29, 2001
Page 4
The above conclusion is based upon Miller Opinion 89 -024 and Kannebecker,
Opinion 92 -010, wherein the Commission considered the extent to which a public official
would have a conflict where a business relationship would exist between the public
official and another party. In Miller, Opinion 89 -024, the Commission addressed the
issue of whether a township zoning officer was restricted by the Ethics Law from working
for a consulting firm when that firm provided services to private clients whose plans could
be brought before the township zoning commission for approval. The Commission first
determined that the consulting firm was a business with which the township zoning officer
was associated. Next, the Commission concluded that the zoning officer had a conflict
as to approving, recommending, or playing any role in the approval of permits or in
relation to any township action involving a client, plan or project involving the consulting
firm. Id. The concern in Miller, was that the township zoning officer would look favorably
on a matter submitted for township action by private clients so as to engender a
continued private business relationship with those clients.
In Kannebecker, Opinion 92 -010, the Commission considered whether the Ethics
Law would impose any restrictions upon a township supervisor as to individuals who had
matters pending before the township when the supervisor was an attorney for those
individuals in unrelated matters. Although the Commission followed Miller in principle, it
refined the Miller holding:
We believe that you would have indeed have a conflict as to
an ongoing client or a client who is on a retainer even if you
would not represent the client as to a matter pending before
the Township. However, as to former or past clients, we do
not believe as a general rule that you would have a conflict.
Under certain circumstances, a conflict could exist as to past
clients; such would depend upon factors like the number of
prior representations of any given client and the period of
time over which that occurred.
Kannebecker at 5 (Emphasis added).
Based upon Miller, supra and Kannebecker, supra, if Mongillo's son would have
an ongoing business relationship with the developer, Mongillo would have a conflict as to
any matter before the township that would involve the developer. However, since the
submitted facts indicate that Mongillo's son has a past business relationship with the
developer, Mongillo would not have a conflict as to the developer's project and could
participate in votes involving said project.
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 Second Class Township Code.
Conclusion: As a Supervisor for Middletown Township, Mongillo 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. Mongillo's son is a member of his immediate family. Pursuant to
Section 1i103(a)of the Ethics Act, Mongillo would have a conflict as to matters before the
Board that would result in a financial gain to himself or his son. In each instance of a
conflict of interest, Mongillo would be required to abstain and observe the disclosure
requirements of Section 11030) of the Ethics Act. Given that Mongillo's son has a past
business relationship with the developer, Mongillo would not have a conflict as to voting
on the developer's project, which is pending before the Township. Lastly, the propriety of
the proposed conduct has only been addressed under the Ethics Act.
Dillon /Mongillo 01 -567
June 29, 2001
Page 5
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 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