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HomeMy WebLinkAbout92-584Daniel C. Herr, Esquire Herr & Low, P.C. 234 North Duke Street P.O. Box 1533 Lancaster, PA 17603 Dear Mr. Herr: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 18, 1992 92-584 Re: Conflict, Public Official /Employee, City Council Member, Use of Authority of Office or Confidential Information Business with which Associated, Architect, City's Prospective Purchase of Property Sought by Council Member's Prospective. Client. This responds to your letter of April 10, 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 practicing architect, with regard to the city's prospective purchase of property, where the member's prospective private client also seeks to purchase a portion of said property. Facts: As legal counsel for Mr. Eugene L. Aleci, an elected Member of the Lancaster City Council ( "Council "), you request an advisory from the State Ethics Commission. Mr. Aleci is a practicing architect with a business located in Lancaster, Pennsylvania. Mr. Aleci is seeking an advisory concerning his involvement in a project which may be constructed on an abandoned railroad yard currently owned by Conrail. Mr. Aleci is working with a prospective client whose business is located adjacent to the Conrail land. This client would like to expand his business onto a portion of the Conrail property. Lancaster City has been negotiating with Conrail for the purchase of the railroad yard which includes that portion. The City's negotiations are being conducted by its Economic Development Coordinator who works out of the Mayor's Office. You state that Lancaster City has a "strong mayor" form of government in which the Mayor's Office is not under the supervision or control of the City Council. Daniel C. Herr, Esquire May 18, 1992 Page 2 Mr. Aleci has organized meetings involving his prospective client and the Mayor's Office and he has asked questions of the City's Economic Development Coordinator, in an effort to move the project along. You state that he has taken these steps on behalf of his prospective client with the understanding that anyone expressing an Interest in developing a portion of the Conrail property would be 'enthusiastically welcomed by the City. You affirmatively represent that Mr. Aleci's position as a City Council Member has not provided him any special access to the Mayor's Office. The structure of the final transaction or transactions involving the Conrail property has not been determined. The portion of the railroad yard sought by Mr. Aleci's prospective client could be sold directly to the prospective client from Conrail or it could be sold to the Redevelopment Authority and then conveyed to the prospective client. Furthermore, it is possible that Lancaster City could take title to the land directly or indirectly from Conrail. Based upon all of the above circumstances you pose the following questions: 1. You ask whether the above facts indicate that Mr. Aleci has acted in this matter in any way .contrary to the Ethics Law, by coordinating meetings and asking information of the Economic Development Coordinator and the Mayor's staff in an effort to keep the Conrail project moving forward; 2. You ask whether Mr. Aleci, by abstaining from votes of the Lancaster City Council which involve the Conrail land project and by filing the disclosure required by the Ethics Law, can avoid a violation of the Ethics Law and prevent any conflict of interest, even if his firm is eventually employed by the prospective client to provide architectural services in connection with the development of the relevant portion of the Conrail railroad yard; and 3. You ask whether it would be a violation of the Ethics Law for Mr. Aleci to suggest to the Lancaster City Council (but not to vote on this matter) that the portion of the railroad yard sought by Mr. Aleci's prospective client should be conveyed directly to that client from Conrail or through the Redevelopment Authority, but not through the City of Lancaster. Discussion: As a Member of the 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. Daniel C. Herr, Esquire May 18, 1992 Page 3 Section 3(a) of the Ethics Law provides: Secti 3. .Restricteed 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. Defin4tions. "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 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. "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. 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 hr y. - - Reference is Daniel C. Herr, Esquire May 18, 1992 Page 4 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(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 have posed three inquiries which will be discussed seriatim. Your; first inquiry may not be adder sed in that it pertains to past conduct. A, reading of Sections.. 7 (10) and ( of the Ethics Daniel C. Herr, Esquire May 18, 1992 Page 5 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. Your second inquiry asks whether Mr. Aleci's abstinence from future votes of the Lancaster City Council which involve the Conrail land project, accompanied by the :requisite disclosure, would avoid a violation of the Ethics Law and prevent any conflict of interest even if his firm is eventually employed by the prospective client to provide architectural services in connection with the development of the relevant portion of the Conrail railroad yard. First of all, if there were a conflict of interest as to past action, future abstinence from 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 anv use of the authority of office, including for example, participating in official discussions lobbying for a particular 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). Under the facts which you have presented, it is clear that Mr. Aleci would have a conflict of interest as to matters before the Lancaster City Council involving the Conrail land project. As noted in Miller Opinion 89 -024, matters which crime before a public official /public employee involving his private business or private clients place the public official /public employee in a situation where he is faced with conflicting interests. In his private capacity, his duties are to the private firm and its clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interests of the governmental body with the duty being owed to the public rather than to private clients. Id.; see also, Brooks, Opinion 89 -023. In Ferraro, Order No. 720, the Commission held that a township engineer violated Section 3(a) of Act 170 of 1978 when he, as a municipal engineer, reviewed or approved plans for persons who employed: him or with whom he had a business relationship. In denying reconsideration, Ferraro, Order No. 720 -R, the Commission rejected Ferraro's arguments that he did not actually approve the plans, that his involvement with the private individuals before the boards was reflected= the submitted plans, and that he did not intend to deceive and the boards had knowledge of his paniel C. Herr, Esquire May 18, 1992 Page b involvement so that there was no violation of the public trust. The Commission stated: Your argument .totally. ignores the most culpable aspect of your actions; that you represented both sides (the municipality and the private client) in several specific instances; a situation which was certainly adverse to the public interest. A clear violation of the public trust exists when you as public employee reviewed, passed upon or recommended, for approval plans for which you received fees for performing private engineering services Ferraro, Order No. 720 -R at 3. See also, Widmer, Order No. 608 -R. Although you characterize this situation as involving Mr. Aleci's "prospective" business client, it is clear from the facts which you have submitted that Mr. Aleci is already acting on behalf of the individual and/or his business. Furthermore, under the Commission's decision in Amato, Opinion 89 -002, a public official/ public employee has a conflict of interest and is restricted from participating in his capacity as a public official /public employee as to matters involving those with whom he has an existing financial relationship or with whom he could reasonably and legitimately be anticipated to develop such a financial relationship after such official action. Id. at 5 (and authorities cited therein). The submitted facts clearly establish that Mr. Aleci's "prospective" financial relationship with this "prospective "_ client would_be anticipated and probably directly pursued by him. Thus, Mr. Aleci would have a conflict of interest in matters before Lancaster City Council involving the prospective client who seeks to purchase a portion of the Conrail railroad yard which railroad yard the City itself seeks to purchase. Your third inquiry asks whether it would be a; violation of the Ethics Law for Mr. Aleci to suggest to the Lancaster City Council (but `not vote upon:this.matter) that the portion of the railroad yard sought by his prospective client should be conveyed directly from Conrail to the prospective client or through the Redevelopment Authority, but not through the City of Lancaster. It is true that Section ,3( - a) does not preclude a public official/public employee, in his capacity as a citizen from seeking action by his governmental body. Thus, it is theoretically possible for Mr. Aleci to approach the Lancaster City Council as a citizen and proffer :. his request. However, should Mr. Aleci pursue this proposed course of conduct, he must -make certain that he is indeed approaching City Council solely in a private capacity and does not in anyway whatsoever use the authority of office or confidential Daniel C. Herr, Esquire May 18, 1 Page 7 information received by holding his position as a public official. A presentation which would in any way differ from the procedures required to be followed by every other private citizen would raise the issue of use of authority of office, such as, for example, if Mr. Aleci remained seated with Council while presenting his views. On the other hand, if Mr. Aleci were in attendance as a privatg citizen, seated with the other private citizens and follow Fg the same procedures for pre his views as must be followed by every other private citizen, there would be no use of authority of office assuming there would be no additional conduct such as behind the scences lobbying of other Council Members for the adoption of his views. 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. Conclusions As a Member of Lancaster City Council in Lancaster, Pennsylvania, Mr. Eugene Aleci is a public official subject to the provisions of the Ethics Law. Mr. Aleci would have a conflict of interest in matters before Lancaster City Council involving the Conrail land project discussed above. In each instance of a conflict of interest, Mr. Aleci must abstain from any participation of any nature whatsoever, and must fully satisfy the disclosure requirements of Section 3(j) As set forth above. Subject to the restrictions of Section 3(a) and Section 3(j) set forth above, Mr. Aleci may approach the Lancaster City Council in a solely private capacity to request that the portion of the Conrail railroad yard sought by his prospective client be conveyed to that prospective client directly from Conrail or through the Redevelopment Authority, but not through the City of Lancattex. 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 ox criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such This letter is a public record and will be made ayailable as Finally, if you disagree with this Advice or if you have any reallWA t9 g11nge same, you may request that the full Commission review this Myles. A personal appearance before the Commission Daniel C. Herr, Esquire May' 3.B, 1992 Page u will be scheduled and a formal Opinion from the Commission will be issued. Any such appeei 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 . 52.12. Sincerely, a elo Af • 0 • Vincent J. Dop3p - Chief Counsel