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HomeMy WebLinkAbout22-501 MozerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL January 24, 2022 To the Requester: The Honorable Ron Mozer Mayor, City of Monessen Dear Mayor Mozer: 22-501 This responds to your correspondence dated December 23, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Facts: Would an individual serving as the Mayor of the City of Monessen (City), who in a private capacity has a business named "Crystalline Technology, LLC," have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), with regard to volunteering his services to correct issues involving the City's video surveillance camera system at no charge to the City? Brief Answer: NO. Section 1103(a) of the Ethics Act, which imposes restrictions upon the individual in his capacity as a public official (i.e., the City Mayor) and not in his private capacity, would not prohibit the individual from volunteering his services to correct issues involving the City's video surveillance camera system at no charge to the City. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: In November 2021, you were elected as the Mayor for the City of Monessen (City), for a term of office beginning on January 3, 2022. The City is a Third Class City. Mozer, 22-501 January 24, 2022 Page 2 You have a business named "Crystalline Technology, LLC" (the Company). From 2011 through 2018, you/the Company installed approximately 60 video surveillance cameras in the City at no charge to the City. You also installed approximately 20 video surveillance cameras in the City that were requested and paid for by the City. The entire video surveillance camera system is owned by the City. Until 2019, the City video surveillance camera system was used by the City Police Department to aid in solving various crimes. You state that in 2019, the individual who was then serving as the City Mayor became disgruntled with you and took all of the video surveillance cameras offline. Although attempts were subsequently made to bring the video surveillance cameras back online, only approximately four video surveillance cameras are currently online. You designed the City video surveillance camera system, and you understand the advanced and complicated wireless network that it uses. You state that you could get the entire City video camera surveillance system back online with limited effort. You ask whether you would have a conflict of interest with regard to volunteering your services to correct the issues involving the City's video surveillance camera system at no charge to the City. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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 Mozer, 22-501 January 24, 2022 Page 3 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(a), 11030). The following terms related to Section 1103(a) 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Mozer, 22-501 January 24, 2022 Page 4 "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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the "de minimis exclusion" and the "class/subclass exclusion"), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be observed in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the City Mayor, you are a public official subject to the provisions of the Ethics Act. The Company is a business with which you are associated in your private capacity. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Therefore, Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a public official (i.e., the City Mayor), rather than upon you in your private capacity. Accordingly, Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from volunteering your services to correct the issues involving the City's video surveillance camera system at no charge to the City. Cf., Schmidt, Advice 20-508. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Mozer, 22-501 January 24, 2022 Page 5 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. Respectfully, rian D. Ja isi Chief Coun