HomeMy WebLinkAbout06-555 McNeelyErnie B. McNeely
Borough Manager
Borough of West Chester
Municipal Building
401 East Gay Street
West Chester, PA 19380
ADVICE OF COUNSEL
May 17, 2006
06 -555
Dear Mr. McNeely:
This responds to your letter of March 28, 2006, 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., would present any prohibition or restrictions upon a recently
elected Borough Council Member of the Borough of West Chester, a home rule
municipality, where: (1) the Borough Council Member and her spouse own a planning
firm; (2) the firm has served since 2003 as the Borough's designated planning
consultant, for compensation; (3) the Borough Council Member's spouse has offered to
provide his services as planning consultant to the Borough on a gratuitous basis,
without any form of compensation, during the time his wife serves on Borough Council;
and (4) the Borough Council Member's spouse has stated that he will refrain from
bidding on any special project planning contracts for which the Borough might solicit
proposals.
Facts: As Borough Manager for the Borough of West Chester ( "Borough "), you
request an advisory on behalf of Carolyn Comitta ( "Comitta "), a recently elected
Borough Council Member. You have submitted facts, the material portion of which may
be fairly summarized as follows.
Comitta took office as a Borough Council Member in January 2006. In a private
capacity, Comitta and her spouse, Thomas Comitta, own "Thomas Comitta Associates,"
a planning firm (hereinafter the Firm "). In 2003, the Borough designated the Firm as
the Borough's planning consultant on a fee basis to review and provide expertise on
development proposals submitted to Borough Council or the Planning Commission.
The Borough is governed by a Home Rule Charter. See, 315 Pa. Code, Part V,
Chapter 41. You have submitted portions of the Borough's Home Rule Charter with
your request for an advisory. Administrative notice is taken of the following provisions
of the Borough's Home Rule Charter:
Section 207 Salaries
A. Each Member of Council may receive compensation
to be fixed by ordinance ... .
McNeely /Comitta, 06 -555
May 17, 2006
Page 2
B. Members of Council shall receive no other
compensation from the Borough, direct or indirect... .
Section 208 Prohibitions
A. No Member of Council shall hold any other
employment by the Borough in which he or she
receives any salary or other form of compensation.
B. No Member of Council may serve as a paid
consultant to the Borough for a period of at least one
year following resignation from Council or the
expiration of his or her term of office.
Section 1102. Prohibitions
A. The following activities shall be prohibited in the
operation of the government of the Borough:
(3) No elected or appointed official of the Borough
or employee thereof, shall:
(b) Engage in any activity or take any action
by virtue of an official position from
which activity or action the official or
employee, or any other person or entity
in whose welfare the official or
employee is interested, shall realize a
gain or advantage, or receive anything
which could be regarded as a gain or
advantage, except such gain or
advantage generally realized by the
citizens of the Borough as the
purposeful result of such activity or
action;
(d) Seek to influence, directly or indirectly,
the awarding of any contract where such
official, or employee, or other person or
entity in whose welfare the official or
employee is interested, would benefit
directly or indirectly, financially or
otherwise, from said contract, except
such benefits generally realized by the
citizens of the Borough as the
purposeful result of such contract;
B. In matters involving the recommendation,
deliberation, or approving of contracts, no elected or
appointed official of the Borough, or employee
thereof, shall participate in any of those
aforementioned activities if he or she, or any member
of his immediate family, has a financial interest in any
person or other entity proposing to contract with the
Borough.
Borough Home Rule Charter, §§ 207 A -B; 208 A -B; 1102 A(3)(b), (d), and B.
McNeely /Comitta, 06 -555
May 17, 2006
Page 3
You state that it is understood that pursuant to the Ethics Act, Comitta could not
vote on any matter that the Firm has reviewed, could not advocate for plans to be
reviewed by the Firm, and could not participate in any action to create business income
for the Firm. You further state that Comitta originally intended that her spouse would
"resign" from the Planning Consultant contract. However, Comitta's spouse, who has
done a variety of work for the Borough over the years, has offered to provide his
services as Planning Consultant to the Borough on a gratuitous basis, without any form
of compensation, while Comitta serves on Council. Comitta's spouse has also indicated
that he would refrain from bidding on any special project planning contracts for which
the Borough might solicit proposals.
Based upon the above, you ask whether Thomas Comitta would be permitted to
serve as the Borough's planning consultant on a gratuitous basis, without any form of
compensation, while Comitta serves on Council, and whether there would be any
ramifications associated with such action. Because you have not established your legal
authority or "standing" to request an advisory as to Thomas Comitta's conduct (see, 65
Pa.C.S. §§ 1107(10), (11)), this Advice must necessarily be limited to addressing your
inquiry with respect to Borough Council Member Comitta, who has authorized your
inquiry as to her prospective conduct.
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 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 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 requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, 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 Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may, and shall be addressed.
As a Borough Council Member, Comitta is a public official 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
McNeely /Comitta, 06 -555
May 17, 2006
Page 4
65 Pa.C.S. §§ 1103(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
65 Pa.C.S. § 1102.
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.
§ 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.
"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,
joint 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.
McNeely /Comitta, 06 -555
May 17, 2006
Page 5
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.
Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act
requires a public official /public employee with a conflict of interest 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 addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /public employee anything of monetary value and no
public official /public employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public
official /public 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.
In applying the above provisions of the Ethics Act to the instant matter, it is noted
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 not 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 1037; (2) the use of governmental facilities, such as governmental
telephones, postage, staff, equipment, research materials, or other property, or the use
of governmental personnel, to conduct private business activities, Freind, Order 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 Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306), or private
customer(s)/client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). The
Commission has also held that a reasonable and legitimate expectation that a business
relationship will form may support a finding of a conflict of interest. Amato, Opinion 89-
002.
In the instant matter, the Firm would be considered a business with which
Comitta and her spouse, Thomas Comitta, are associated. Pursuant to Section 1103(a)
of the Ethics Act, Comitta as a Borough Council Member would have a conflict of interest
in matter(s) that would financially benefit herself, an immediate family member such as
her spouse, the Firm, or private client(s). In each instance of a conflict, Comitta would be
required to abstain fully from participation and to satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
In response to your specific inquiry, you are advised that in the absence of any
private pecuniary benefit that would be contrary to Section 1103(a), Section 1103(a) of
the Ethics Act would not impose any prohibition or restrictions upon Comitta with
respect to her husband's proposed provision of services as planning consultant to the
Borough on a gratuitous basis, without any form of compensation, during the time
Comitta serves on Borough Council. This Advice is conditioned upon the assumption
that there would in fact be no actual or reasonably anticipated prohibited private
pecuniary benefit resulting to Comitta, a member of her immediate family, or a business
with which she or a member of her immediate family is associated.
McNeely /Comitta, 06 -555
May 17, 2006
Page 6
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 Borough's Home Rule Charter. It is noted that the Ethics Act specifically permits
governmental bodies to adopt requirements to supplement the Ethics Act provided that
no such requirements shall in any way be less restrictive than the Ethics Act. 65
Pa. C. S. § 1111.
Conclusion: As a Borough Council Member for the Borough of West Chester, Carolyn
Comitta ( "Comitta ") 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. Comitta's spouse,
Thomas Comitta, is an immediate family member of Comitta. The planning firm
"Thomas Comitta Associates" (hereinafter the Firm "), which is owned by Comitta and
her spouse, is a business with which Comitta and her spouse are associated. Pursuant
to Section 1103(a) of the Ethics Act, Comitta as a Borough Council Member would have a
conflict of interest in matter(s) that would financially benefit herself, an immediate family
member such as her spouse, the Firm, or private client(s). In each instance of a conflict,
Comitta would be required to abstain fully from participation and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. In the absence of any private
pecuniary benefit that would be contrary to Section 1103(a), Section 1103(a) of the
Ethics Act would not impose any prohibition or restrictions upon Comitta with respect to
her husband's proposed provision of services as planning consultant to the Borough on
a gratuitous basis, without any form of compensation, during the time Comitta serves on
Borough Council. This Advice is conditioned upon the assumption that there would in
fact be no actual or reasonably anticipated prohibited private pecuniary benefit resulting
to Comitta, a member of her immediate family, or a business with which she or a
member of her immediate family is associated.
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 requester 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