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HomeMy WebLinkAbout05-507 WeinheimerJerry Weinheimer 25 Towne Street North East, PA 16428 Dear Mr. Weinheimer: ADVICE OF COUNSEL February 14, 2005 05 -507 Re: Conflict; Public Official /Employee; Borough; Council Member; Subsequent Employment with Borough; Borough Manager. This responds to your letter of January 7, 2005, 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 borough council member with regard to applying for and accepting an employment position with the borough. Facts: You are a Council Member for the Borough of North East ( "Borough "), Erie ounty, Pennsylvania, having been elected in 1991, and having served on Council since that time. You were elected President of Council in 2002, and again in 2004. Borough Council is in the process of terminating the employment of the current Borough Manager. You state that you have not taken part in the termination process or the process of offering a settlement package to him. You have been approached by other Council Members with regard to assuming the position of Borough Manager once it becomes vacant. You wish to consider the position and submit an application, if necessary. You state that you are fully aware that you are required to relinquish your Council seat before accepting employment as Borough Manager, and that you may not participate in the current Borough Manager's termination or offer of a settlement package. However, you seek guidance as to whether there are any other ethical and /or legal questions or requirements that may affect this hiring process. 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 Weinheimer, 05 -507 February 14, 2005 Page 2 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, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. If hired as Borough Manager, you would be a public employee under the Ethics 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. "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. The term 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. 65 Pa.C.S. § 1102. Weinheimer, 05 -507 February 14, 2005 Page 3 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 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(f) of the Ethics Act provides: § 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 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). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (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 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 1103(g) of the Ethics Act provides: Weinheimer, 05 -507 February 14, 2005 Page 4 § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). Section 1103(j) of the Ethics Act provides: § 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. 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, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the instant matter, 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. Weinheimer, 05 -507 February 14, 2005 Page 5 Although Section 1103(a) of the Ethics Act would not preclude you from applying for and accepting an employment position with the Borough, as a Borough Council Member, you would have a conflict of interest as to the selection process for the Borough Manager's position. Therefore, you could not use the authority of your office as a Borough Council Member or confidential information to advance your own employment or to eliminate any competition for that position. Spataro, Opinion 89 -009; Boonin, Opinion 90 -003; Pepper, Opinion 87 -008. In addition, you could not, for example, participate in matters such as establishing the job qualifications for the position, reviewing /screening applicants for the position, or interviewing applicants. In each instance of a conflict, you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With respect to Section 1103(f) of the Ethics Act, because you would be accepting an employment position with your governmental body under a contract that would presumably be valued at $500 or more, the requirements as to an "open and public process" must be strictly observed. Finally, the Commission has determined that where a public official /public employee resigns from his current position to accept a position within the same governmental body, such constitutes a transfer between positions within the same governmental body making Section 1103(g) of the Ethics Act inapplicable. Boonin, supra. The Commission has further determined that Section 1103(g) of the Ethics Act does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, Opinion 00 -004; Long, Opinion 97- 010; Confidential Opinion, 93 -005. 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 Council Member of North East Borough ( "Borough "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. If hired as Borough Manager, you would be a public employee under the Ethics Act. Although Section 1103(a) of the Ethics Act would not preclude you from applying for and accepting an employment position with the Borough, as a Borough Council Member, you would have a conflict of interest as to the selection process for the Borough Manager's position. Therefore, you could not use the authority of your office as a Borough Council Member or confidential information to advance your own employment or to eliminate any competition for that position. In addition, you could not, for example, participate in matters such as establishing the job qualifications for the position, reviewing /screening applicants for the position, or interviewing applicants. In each instance of a conflict, you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With respect to Section 1103(f) of the Ethics Act, because you would be accepting an employment position with your governmental body under a contract that would presumably be valued at $500 or more, the requirements as to an "open and public process" must be strictly observed. Section 1103(g) of the Ethics Act would be inapplicable where: (1) you would transfer from one position in the Borough to accept another position in the Borough; or (2): as a former public official, you would be rehired by the Borough provided that a true public employment relationship would exist. 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 Weinheimer, 05 -507 February 14, 2005 Page 6 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