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HomeMy WebLinkAbout92-539-SSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 23, 1992 Mr. Michael F. Cummings Connor - Helring Financial Resources 1906 Sanderson Avenue Scranton, PA 18509 92 -539 -S Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office, Business with which Associated, Insurance Agent, Municipal Pension Consultant, Removal, Former Public Official, Section 3(g), Supplemental Advice. Dear Mr. Cummings: This responds to your letter of September 15, 1992 in which you requested supplemental advice from the State Ethics Commission, Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a former borough council member, whose appeal of his court - ordered removal from office was dismissed for mootness, with regard to doing business with the borough in his private capacity as a pension consultant. Facts: As a former Borough Council Member, you seek a supplemental advisory from the State Ethics Commission with regard to your prospective business dealings with the Borough as a pension consultant. Following a letter of request of January 10, 1992, Advice of Counsel No. 92 -539 was issued which is incorporated herein by reference. That Advice noted that the Commission could not predict how your appeal from your court - ordered removal from office would ultimately be resolved by the Courts, and therefore, in the absence of a definitive judicial decision as to when your public office terminated, the Commission could not definitively state when the one year period of applicability of Section 3(g) would commence'to run for you. The Advice concluded that at all times that you held public office, you would be required to observe and comply with Sections 3(a), (b), (c), (f), and (j) of the Ethics Law, and that any prospective private pecuniary benefit resulting from a transgression of any of the above provisions woUld.be prohibited. The Advice was expressly conditioned upon the assumption that at no Mr. Michael F. Cummings October 23, 1992 Page 2 time did you use your official status or activities, the authority of your public office, or any confidential information regOived'by holding your public position to obtain or advance any "private business opportunity with the Borough of Dunmore and /or to eliminate competition for such private business opgartunities . The Advice further concluded that upon termination service with the Borough of Dunmore, you would 'become a "former public official" subject to Section 3(g) of the Ethics Law, which restrictions would apply to you for one year following termination of your office as a Borough Council Member and would specifically apply with regard to your rendering prospective professional-services to the Borough. Finally, you were advised that the rastrictions Section 3(b) and 3(c) apply to everyone and that you would be required to comply 'with those sections at all times regardless of your status ' as a public official or former public official. Following the issuance of Advice 92 -539, you have requested a supplemental advisory in light of an Order of the - Supreme Court of Pennsylvania dismissing your aforesaid appeal. You have submitted a copy of the April 6, 1992 Order of the Supreme Court of Pennsylvania, docketed to No. 36 E.D. P,ppeal Docket 1991 which Order is incorporated herein by reference. 'It is noted that the said Order dismissed your appeal for mootness. You state that you have not served - as a Council Member since May of 1989. Based upon all of the above, a supplemental Advice has been requested as to when it would be-permissible for you to function as a pension consultant for the Borough of Dunmore for compensation. Discussion: The relevant provisions of the Ethics Law which would be applicable in this matter have already been fully set forth in Advice 92 -539 and are incorporated by reference. They will not be repeated, but rather the focus of this supplemental Advice shall be directed toward the narrow issue which you have raised in light of , the Supreme Court's dismissal for mootness of your appeal from the - court- ordered removal of you from office. As set forth in the facts in Advice 92 -539, your removal from office by the Lackawanna County Court of Common Pleas was in May of 1989. Therefore, Section .3(g) would-no longer restrict you as to functioning as a pension consultant for the Borough of Dunmore, in that the one -year period of applicability of Section 3(g) has run. 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 Mr. Michael F. Cummings October 23, 1992 Page 3 herein is the applicability of the Borough Code. Conclusion: As a Borough Council Member for the Borough of Dunmore, you would be considered a "public official" as defined in the Ethics Law, at all times during which you 'held that public office. In light of the fact that your appeal from`the May, 1989 court - ordered removal of you from office has been dismissed for mootness, Section 3(g) would no longer restrict you as to functioning as "a pension consultant for the of Dunmore for compensation. -. 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 raquestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. ., ncerely, U Vincent J. Dopko Chief Counsel •