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HomeMy WebLinkAbout03-539 CoulterADVICE OF COUNSEL April 15, 2003 James P. Coulter, Esquire Dillon, McCandless, King, Coulter & Graham, LLP 128 West Cunningham Street Butler, PA 16001 Dear Mr. Coulter: 03 -539 Re: Conflict; Public Official /Employee; City; Council Member; County; Community Development Corporation; Consultant To Joint Committee /Task Force and Community Development Corporation; Client. This responds to your letter of March 12, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a city council member as to serving as a paid consultant to a community development corporation and a joint committee /task force created by the city, county, and the community development corporation to formulate a plan of action to develop an area of the City, where the council member has no property interests in or near the development area. Facts: As Solicitor for the City of Butler ( "City "), a third class city, you seek an advisory on behalf of Thad Thomas Burkley, 11 ( "Burkley "), a member of City Council. You have submitted facts, which may be fairly summarized as follows. The City, Butler County ( "County "), and the Community Development Corporation ( "CDC "), a private non - profit corporation organized to encourage development in the County, are currently attempting to form a joint committee /task force to formulate a plan of action to develop an area of the City. You state that Burkley has been approached to serve as a paid consultant to the joint committee /task force, in which capacity, he would act as a liaison between the committee /task force and federal and state agencies which could assist in the advancement of the development project. Burkley would also serve as a consultant to the CDC, but would not be deemed an employee of the CDC. Burkley would report to both the CDC and the joint committee /task force. You assert that Burkley has no property interest in the development area. While Burkley owns a home in the City, the home is not located near the development area. Coulter /Burkley, 03 -539 April 15, 2003 Page 2 You ask whether Burkley's service as a paid consultant under the submitted facts would constitute a conflict of interest under the Ethics Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(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 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Council Member for the City of Butler ( "City "), Thad Thomas Burkley, II ( "Burkley ") is a public official as that term is defined in the Ethics Act, and hence Burkley is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms 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. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment of the public official /employee Coulter /Burkley, 03 -539 April 15, 2003 Page 3 would be influenced thereby. Reference is 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 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) 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 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(j). In each instance of a conflict, Section 1103(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. The abstention requirement would not be limited to merely voting, but would extend 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may employee use the authority of his public position - or confidential information obtained by being in that position - for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89- 011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use Coulter /Burkley, 03 -539 April 15, 2003 Page 4 of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In Kannebecker, Opinion 92 -010, the State Ethics Commission determined that a township supervisor, who in his private capacity was an attorney, would have a conflict of interest as to matters before the township involving ongoing client(s) or client(s) for whom he was on retainer, even if he would not represent such client(s) as to the matter pending before the township. The Commission determined that as a general rule, a conflict would not exist as to former client(s), but that under certain circumstances, a conflict could exist as to former client(s) depending upon factors such as the number of prior representations of the given client and the period of time over which such occurred. In considering the above, the joint committee /task force and the CDC, to which Burkley would provide consulting services, would be considered to be clients of Burkley. As a general rule, pursuant to Section 1103(a) of the Ethics Act, as a Member of City Council, Burkley would have a conflict of interest as to matters that would financially impact himself, a member of his immediate family, a business with which he or a member of his immediate family is associated, or private client(s) such as the joint committee /task force and the CDC. See, Kannebecker, supra. Burkley would specifically have a conflict as to development plans or projects involving the joint committee /task force and /or the CDC. See, Miller, supra. It is parenthetically noted that to the extent that Burkley, as a City Council Member, would have the authority to appoint /reappoint member(s) to the joint committee /task force, a conflict would exist for Burkley based upon the State Ethics Commission's rulings in Bassi, Opinion 86- 007 -R, Woodrinq, Opinion 90 -001, and Elisco, Opinion 00 -003. The basis for the conflict would be that in Burkley's position as a ity Council Member, he could exercise authority over the appointment /reappointment of member(s) of the joint committee /task force, while the member(s) of the joint committee /task force could exercise influence and control over matters affecting his retention as a consultant to the joint committee /task force. For the reasons enunciated in Bassi, Woodrinq, and Elisco, supra, such a reciprocal arrangement would result in a conflict of interest for Burkley under Section 1103(a) of the Ethics Act. As noted above, in each instance of a conflict, Burkley would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Member of Council for the City of Butler ( "City "), Thad Thomas Burkley, 11 ( "Burkley ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not prohibit Burkley from serving as a paid consultant to the Community Development Corporation ("CDC") and a joint committee /task force created by the City, Butler County ( "County "), and the CDC to formulate a plan of action to develop an area Coulter /Burkley, 03 -539 April 15, 2003 Page 5 of the City; however, given that the CDC and the joint committee /task force would be deemed clients of Burkley, as a Member of City Council, he would have a conflict of interest as to matters that would financially impact himself, a member of his immediate family, a business with which he or a member of his immediate family is associated, or private client(s) such as the joint committee /task force and the CDC. Burkley would specifically have a conflict as to development plans or projects involving the joint committee /task force and /or the CDC. To the extent that Burkley, as a City Council Member, would have the authority to appoint /reappoint member(s) to the joint committee /task force, a conflict would exist because in his position as a City Council Member, he could exercise authority over the appointment /reappointment of member(s) of the joint committee /task force, while the member(s) of the joint committee /task force could exercise influence and control over matters affecting his retention as a consultant to the joint committee /task force. In each instance of a conflict, Burkley would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 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 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. Sincerely, Vincent J. Dopko Chief Counsel