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HomeMy WebLinkAbout94-629 GrahamDonald P. Attorneys Cranberry 501 Smith Cranberry Re: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COLT'SEL November 18, 1994 Graham, Esquire at Law Professional Park Drive, Suite 3 Township, PA 16066 94 -629 Conflict, Public Official /Employee, Borough Council Member, Business with which Associated, Business Client, Retiree. Dear Mr. Graham: This responds to your letter of October 12, 1994 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 a borough council member from participating in matters involving a company when the business with which he is associated is a supplier to that company and upon another borough council member in participating as to matters involving a company from which he is retired, and receiving a pension. Facts: After referencing Advice of Counsel No. 94 -565 issued on April 26, 1994, you seek another advisory regarding Timothy Sapienza (Sapienza) who has been appointed to replace Anna Kanigowski on the Borough Council. The question has risen whether Sapienza has a conflict regarding Paragon Trade Brands (Paragon/ in that Sapienza is employed as a manager by Pennsylvania Power Company (PPC) which is the electrical supplier to Paragon. The question of conflict has arisen as to Sapienza because he is manager of PPC and might vote on matters involving Paragon. Council may be required to vote on a request for an amendment to a. Zoning Ordinance, a site plan, a petition to vacate a street and a conditional use request that has been submitted; by Paragon. Charles Beighey (Beighey) is a Council Member who is a retire of PPC and is currentky receiving a pension. As part of the monthly payment of bills, Beighey is calked upon to approve peyments to PPC for utility $ es: as to street lighting and Graham, Donald P., Esquire, 94 -629 Noveer 18, 1994 Page 2 general Borough operations. You request advice as to whether Beighey is precluded from voting on the payment gf bills because of the inclusion of PPC bills in the list of'invoicea to be paid. Discussion: It is initially noted that pursuant to Suctions 7(10) and 7(11) of the Ethics Law, 65 P.S. 5 §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. 85407(10), (11). An advisory only affords a .defense to the extent the requestor has truthfully disclosed all of the material facts. Further, this advice is limited to the facts presented in this advisory request only. As Council Members for Harmony Borough, Sapiegza ea4 Beighey are public officials as that term is defined under t ie Ethics Law, and hence they are subject to the provisions of that lair. Section 3(s) of the Ethics Law provides: Secta o,n 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: Segtion 2. Definitions. "Conflict or conflict of interest.' Use by a public official or public employee of the authority of h.s office or employment or any confidential information received through hie bolding public office or employment for t private pecuniary benefit of himself, a member of his immediate family or a bu$iness 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 miaimis economic- impact or which .affects to the same decree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public : Qpff icial or public employee, a member of his ;immediate family or Graham, Donald P., Esquire, 94 -62 -9: November, 1'8, 1994 Page 3 a business with which he or a member. o€ his immediate family is associated. "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 -. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 otticial /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been oT 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 (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 wpvld 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 Graham, Donald P., Esquire, 94 -629 November 18, 1994 Page 4` 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 opp sing vote$ the 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 exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abltehtioa and reasons for same, both orally and by filing a wr4t mewoiinai m to that effect with the person recording the minutes Q su e*visor. In applying the above provisions of Section(a) of the Ethics Law tQ the - instant matter, Sapienza would have a conflict regarding matte rs invoo.v n „ Paragon. In Miller, Opinion 89 -024, the Com aeaiQn field that a Public official who Was employed by a iO ens 'wool s have a conflict of interest not only as to that bi. 4�nes but t4 the clients of that business. In addition, in Itannebe Opinion 92 -010, the Commission held that townsh p supe yieor whp - had a private law practice would have a conflict as tq'* law ' glieuts Coming before the township board even though his legal representation of those clients was not related to the issues the 'clients hail before that municipal body. In this case, since Pafagq,i i a v endee as to electrical supplies by PPC, it is clear t.at Sapienza has a conflict based upon Miller. Sapienza is e ployed as a manger by. EEC which is a "business with which he is associated" as per the' above quoted definition in the Ethics Law. 544G-041-8 is. supplied bj PRC and hence is a client or vendee of PPC. 4400Kdingly• basec'� uR�?n M i iller, Sapien has a conflict and may not � partiipate aril must 'obse"rve' the disclosure requirements of Section 3(j) , 'toted move. However, as to Eeighey, based upon the submitted facts, it oes nqt ea that Be�gfiey app -�' is associated with PPC in that he is yr q,urrenv;]:y, retired and receiving a pension. Therefose.., ass ng that Beighey d oes not any posi With PPC, and does not have , % •�rfiria4eial ygterest ": as that term is defined under the Ethics Law abov FC wld not be a' business with which Beighey is associated 4n4 hence' he wQUld' c have: a conf .ict regardin vot ng on the aPB.rc val g.i bi.laby p$C.. The p, .c .riety, of the proposed conduct has only been addressed ux de the a Law; the applicability -o£ a.ny of stat: te, code, oraz:lance,, regulati or other code ot conduct other than the Graham, Donald P., Esquire, 94 -6Z9 November 18, 1994 Page 5 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 Council Members for Harmony Borough, Sapienza and Beighey are public officials subject to the provisions of the EChias Law. Under Section 3(a) of the Ethics Law, Sapienza has a conflict on matters involving Paragon Trade Brands, Inc. when Sapienza is an employee of Pennsylvania Power Company which is a supplier to Paragon. Sapienza must abstain and observe the disclosure requirements of Section 3(j) as noted above. Beighey as a retired employee of Penn Power Company who is currently receiving a pension from that company would not have a conflict participating on the approval of monthly payments of bills which include Pennsylvania Power Company based upon the above submitted facts. 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 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 Cession. such. Any such appeal must be in writing and : must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(11). The appeaEl may be received at the Commission by hand delivery, United States wail, delivery service, or by FAS transmis ion (717_707= -0006). F&ilure to file such an appeal at the Commission aion ,within fifteen 115) days may result in the dismissal of the appeal. Vincent J.V Dopko Chief Counsel