HomeMy WebLinkAbout92-569Mr. Daniel C. Herr'.
Herr & Low, P.C.
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17603
Dear Mr. Herr:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA -1470
TELEPHONE (717'783 -1610
ADVICE OF COUNSEL
April: 28, 1992
92 -569,
Res Conflict, Public Official /Employee, City Council Member, Use
of Authority of Office, Business with which Associated;
Architect, Renovation Project, City Funding, Contracting with
:Governmental Body.
ThiS responds to your letter of March 16,• 1992, 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 city council member
who is also a registered architect; with regard to a restoration
project funded in part by the city, where the member would' pursue
a contract to provide architectural services • for the pro/ect.
Facts: As legal counsel for Mr. Eugene L. Aleci, an elected Member
of the Lancaster City Council ("Council "), you request advisory
from the State Ethics Commission. Mr. Aleci is a registered
architect with a business located in Lancaster. You state that
over 'the years Mr. Aleci has developed considerable expertise in
historic preservation and renovation. work', which provides a
valuable perspective' in his capacity as a public 'official but`, you
feel, is also the source of a potential conflict of interest.
The Fulton Opera House is a historic theater located in
downtown Lancaster, and is in need of renovations which will cost
approximately seven to eight million dollars. Approximately a year
ago, Council voted on a bond issue which included a million dollars
to assist with these renovations, - to be loaned to the Fulton.
Approximately five or six months prior to the .vote, the management
of the Fulton had publicly - announced that it _expected to use an
architect and theater consultants from out of town. -You state that
Mr. Aleci, feeling confident that his firm-would ,therefore not be
involved, voted with the majority in favor 0f this financing
Daniel �E . Herr
April 28, 1992
Page 2
package for the Fulton Opera. House.
In February, 1992, a representative of the Fulton called Mr.
Aleci after having interviewed several architects and consultants
from outside of the area. The representative asked Mr. Aleci to
submit a full proposal for the renovation work if he was interested
in the project. You state that since this is a significant
landmark which is important to the City and would be an exciting
project for his firm, Mr. Aleci submitted a proposal. You state
that it is Mr. A].eci's intent, so long as his firm is being
considered for the project, to abstain from voting on any Council
action pertaining to Fulton Opera House financing, and to announce
publicly and disclose in writing the nature of his interest in the
project, as required by the Ethics Law.
Under the proposed Agreement, which . has not been provided to
this Commission, the City would loan to the Fulton Opera House a
small portion of the total construction budget money, and would
also provide some matching grant support, and the mayor or her
designee would obtain a seat on the Fulton Opera House Board for
the duration of the project. By the aforementioned vote, Council
has already approved the appropriation of funds and the basic
contract, although the smaller matching grant portion of the City's
support still needs to be finalized by Council.
All administration of the project will be through the Mayor's
office, and you note that the City has a "strong mayor" form of
government in which the Mayor's office is not under supervision
or control of Council.
However, the proposed contract which is being circulated for
the project includes an affirmative covenant which provides as
follows: ". . . no member of the governing body , of the City of
Lancaster . . . shall have any interest, direct or indirect, in any
contract or subcontract, or the proceeds thereof, for work to be
performed in connection with this Loan Agreement. . . "
You pose the following specific inquiries:
1. Bond Approval, Is Mr. Aleci in violation of the State
Ethics Law if he pursues a contract for architectural
services in the Fulton Opera House Restoration Project
solely because he voted in favor of the Bond Issue which
will be the source of some of the Project funding at a
time when he thought his firm could not be eligible for
the Project?
2. Av Future C onflicts of Interests. Can'Mr. Aleci,
by abstaining from all future votes on the Fulton -Opera
Daniel - C. Herr
April 28, 1992
Page 3
House Renovation Project and by filing the disclosure
required by the Ethics Law, avoid a violation of that law
and prevent any conflict of interest even if his
architectural firm pursues -with the Fulton Opera House "a
contract for the architectural work on the Project? If
so, would it then be a conflict of - interest for Mr. Aleci
to request (but not vote on) an amendment to the written
Contract to remove the prohibition quoted above?-
3. Other Concerns. Does the fact situation set forth above
raise any other concerns under the Ethics Law of which
Mr. Aleci should be aware?
Discussion: As a Member of Lancaster City Council, Mr. Eugene
Aleci 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 employment for the
private pecuniary benefit 'of himself, a member
of ° his immediate family or a business Vith
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.
" Authority of office or employments" The
Daniel C. Derr
April 28, 1992
Page 4
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.
"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.
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
irnnnediate family is associated.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
i.n 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 Sections 3(b) and 3(c) 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:
Daniel C. Herr
April 28, 1992
Page 5
Section 3. Restricted activities
(f) Igo 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.
Parenthetically, where contracting is otherwise allowed or
where there appears to be no expressed prohibitions to such
contracting, the above particular provision of law would require
that an open and public process%must be used in .all situations
where a public official /employee is otherwise appropriately
contracting with his own governmental body in an amount of $500.00
or more. This open and public process would. require:
(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) p f the Ethics also requires that the public
Daniel C. Herr
April 28, 1992
Page 6
official /employee may not have any supervisory or .overall
responsibility as to the implementation or administration of the
contract.
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.
If a conflict exists, 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.
You h4ye pgsed three inquiries which will be discussed
seriatim.
Daniel C. Herr
April 28, 1992
Page 7
Your first inquiry may not be addressed in that it pertains to
past ,conduct. A- reading of Sections 7(10) and (11) of the Ethics
Act makes it clear- that an opinion /advice may be given only as to
prospective (future) conduct. If the activity in question has
already occurred, the Commission may not issue an opinion /advice
but any person may then submit a signed and Sworn complaint which
will be investigated by the Commission if there are allegations of
Ethics Law violations by a person who is subject to the Ethics Law.
Although it appears from your letter that Mr. Aleci's pursuit
of the contract for architectural services may be prospective, the
official conduct, the vole in favor of the bond issue, has already
occurred. Thia is particularly significant because Section 3(a) of
the Ethics Law pertaining to conflicts of interest applies to
restrict official conduct.
Your second inquiry asks whether Mr. Aleci's abstinence from
all future votes on the Fulton Opera House. Renovation Project,
accompanied by the requisite disblosure, would avoid a violation of
the Ethics Law and prevent any conflict of interest even if his
architectural firm pursues a.contract with the Fulton Opera House
for the architectural work on the project. First Of all, if there
were a conflict of interest as- to past action, future abstinence
frdm future votes would not, alleviate the existing problem.
Secondly, mere abstinence,from the actual voting of Council would
not necessarily avoid a violation of the Ethics Law. A conflict of
interest may arise as a result of any use of authority Of office,
including for example, -participating in official discussions,
lobbying for a pa_rtj.cular result, exerting influence, and the like.
A conflict of- interest may also arise from the use of any
confidential information received by holding a public position.
Thus, in each instance of a conflict of interest, the Ethics Law
would require that Mr. Aleci abstain from any participation of any
nature whatsoever, as well as fully satisfy the disclosure
requirements of Section 3(j).
You second ;inquiry asks further whether it would be a conflict
of interest for Mr. Aleci to request - but not vote upon - an
amendment to the written contract to remove the affirmative
covenant which prohibits a member of the governing body of the City
from having any direct or indirect interest in any contract or
subcontract or the proceeds thereof for - to be performed in
connection with the loan agreement. It is .clear that Hr. Aleci
would have a conflict of interest even in requesting such an
amendment. Although it is true that Section 3(a) would not
preclude a public official /public employee, ih his capacity as a
citizen from seeking action by his _governmental body, the
prohibition which Mr. Aleci would be 'Seeking to remove from the
Daniel C. Herr
April 28 1992
Page 8
contract does not apply to him as a citizen, but rather, inherently
and inextricably applies to him in his official capacity as a
Member of City Council.
ybu third inquiry very generally asks whether there are other
concerns under the Ethics Law of which Mr. Aleci should be aware.
Given the general nature of this. inquiry, the response must be
general as well. Mt. Aleci must comply with Sections 3(a), (b),
(C), (f) and (j) of the Ethics Law, as set forth above, with regard
to this matter.
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 crude of conduct other than the
Ethics Law has not been considered in that they do not involve an
interpretation of the Ethics Law. Specifieally not addressed
herein is the applicability of the respective municipal code.
Conclusions As a Member of Lancaster City Council, Mr. Eugene
Aleci is a public Official subject to the provisions of the Ethics
Law. Mr. Alegi must comply with the requirements of Sections 3(a),
(b), (c), (f) and (j) of the Ethics Law, as set forth above. In
each instance of a conflict of interest, Mr. Aleci must abstain
from any participation of any nature whatsoever, including but not
limited to participating in discussions, lobbying fora particular
result, exerting influence as a City Council Member, and /or voting,
and must additionally fully satisfy the di §closure requirements of
Section 3(j) as set forth above. Mr. Aleci would have a conflict
of interest in requesting an amendment to the contract for the
Fulton Opera House project to remove the affirmative covenant which
prohibits members of the governing body of the City from having any
direct Or indir'edt interest in any contract or subcontract or the
proceeds thereof for work performed in connection with the loan
agreement. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethids 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 cosiinitted the acts complained of in reliance
on the Advice gatemen.
such.
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 ohallenge same, you may request that the full Commission
review this Advice. A personal appearance before the Commission
Daniel C. Herr
April 28, 1992
Page 9
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal mtist be itn 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,
Vincent J. Dopko
Chief Counsel