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HomeMy WebLinkAbout04-554 Confidential(3) ADVICE OF COUNSEL May 26, 2004 04 -554 Re: Conflict; Public Official /Employee; Pennsylvania Legislator; Legislative Employee; Postion Classification A; Contract Between Legislator /Caucus and Parent of Legislative Employee. This responds to your letter of April 26, 2004, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibition or restrictions upon a Pennsylvania legislator or legislative employee employed by the legislator with regard to a proposed personal services contract between the legislator or his caucus and an entity owned and operated by a parent of the legislative employee. Facts: You request an advisory on behalf of an unidentified Pennsylvania eggisTtor (hereinafter, "Legislator "). The Legislator wishes to enter into a personal services contract with an entity owned and operated by the parent of a staff person the Legislator employs (hereinafter, "Legislative Employee'). The contract will be valued at more than $500.00 and will not be awarded through an open and public process. You indicate that the contract may name the caucus to which the Legislator belongs as one party to the contract. The Legislative Employee's position classification is Position Classification A. According to the job description, employees in this classification work: [Quote]. You request advice as to the following: (1) Whether the Legislative Employee is a public employee subject to the Ethics Act; (2) Whether the proposed contract would present a conflict of interest for the Legislator or Legislative Employee under 65 Pa. C.S. § 1103(a); and Whether the proposed contract would violate § 1103(f) of the Ethics Act as to the Legislator or Legislative Employee, given that the contracting entity is a business with which a parent of the Legislative Employee is associated. Confidential Advice 04 -554 May 26, 2004 Page 2 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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 Member of the Pennsylvania General Assembly, the Legislator on whose behalf you have inquired is a public official subject to the provisions of the Ethics Act. Additionally, based upon the submitted portion of the Legislative Employee's job description, the Legislative Employee is a public employee subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) 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. (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(a), (j). The following terms pertaining to conflict of interest 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 Confidential Advice 04 -554 May 26, 2004 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity organized for profit. "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. Pursuant to Section 1103(a) of the Ethics Act, 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 immediate family is associated. In each instance of a conflict, Section 1103(j) requires the public official /public 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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No 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 Confidential Advice 04 -554 May 26, 2004 Page 4 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. 65 Pa.C.S. § 1103(f) (Emphasis added). In applying the above provisions of the Ethics Act to the questions presented, as noted above, the Legislator would be a public official and the Legislative Employee would be a public employee subject to the Ethics Act. The proposed contract would present a conflict of interest for the Legislative Employee because the contracting entity is a business with which the Legislative Employee's parent is associated. Based upon the submitted facts, there is no basis for concluding that a conflict of interest would exist for the Legislator as to the proposed contract. Finally, based upon the submitted facts, the proposed contract would not cause the Legislator or Legislative Employee to transgress Section 1103(f). That Section only applies as to contracts /subcontracts involving the public official /public employee, his spouse or child, or a business with which the public official /public employee or his spouse or child is associated. It does not apply as to a contract involving a business with which a parent is associated. 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 Legislative Code of Conduct. Conclusion: The Pennsylvania Legislator on whose behalf ou have inquired is a public official subject to the provisions of the Public Official and y Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Legislative Employee about whom have inquired is a public employee subject to the provisions of the Ethics Act. The Legislative Employee would have a conflict of interest as to the proposed personal services contract between the Legislator /Legislator's Caucus and an entity owned and operated by a parent of the Legislative Employee. Under the submitted facts, there is no basis for concluding that a conflict of interest would exist for the Legislator as to the proposed contract. Under the submitted facts, the proposed contract would not cause the Legislator or Legislative Employee to transgress Section 1103(f), which Section does not apply as to a contract involving a business with which a parent is associated. 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 Confidential Advice 04 -554 May 26, 2004 Page 5 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