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HomeMy WebLinkAbout06-590 O'GurekADVICE OF COUNSEL October 11, 2006 William J. O'Gurek Office of the Carbon County Commissioners Court House Annex P.O. Box 129 Jim Thorpe, PA 18220 -1238 Dear Mr. O'Gurek: 06 -590 This responds to your letter of September 6, 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., presents any prohibition or restrictions upon a county commissioner, who is employed in a part -time capacity with a newspaper, from voting to: (1) authorize the advertisement of county legal notices in the newspaper; (2) approve the payment of bills from the newspaper; or (3) enter into contracts with and /or pay invoices to companies related to the newspaper. Facts: You are the Chairman of the Board of Commissioners of Carbon County (" ounty "). In your private capacity, you are a part -time employee of the Times News, a newspaper of general circulation in the County. You receive income from your employment with the Times News but do not own stock or have an ownership interest in the Times News. In your capacity as the Chairman of the Board of Commissioners, you have been abstaining from voting to authorize the advertisement of County legal notices in the Times News newspaper and from voting to approve the payment of bills from the Times News. You have also been abstaining from voting to enter into contracts with, and /or to approve the payment of bills from, companies that are associated with the Times News and do business with the County. However, you have found that your abstentions have caused delays in the placement of advertisements and /or the payment of bills, particularly in circumstances involving another commissioner's absence from a meeting. You ask whether it would be a conflict of interest under the Ethics Act for you to vote to advertise County legal notices, as required by state statute, in the Times News or to vote to pay bills from the Times News. You also ask whether it would be a conflict of interest for you to vote to enter into contracts with, and /or to pay invoices to, companies related to the Times News. O'Gurek, 06 -590 October 11, 2006 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 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. As Chairman of the County Board of Commissioners, 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. 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 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 O'Gurek, 06 -590 October 11, 2006 Page 3 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. 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/ 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 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 as follows: § 1103. Restricted activities O'Gurek, 06 -590 October 11, 2006 Page 4 65 Pa.C.S. § 1103(f). (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. The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "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. 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. O'Gurek, 06 -590 October 11, 2006 Page 5 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. In applying the above provisions of the Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interests 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 or private clients(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a private employer or business with which the public official /public employee is associated or a client of the private employer or business would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, supra; Kannebecker, supra. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. The abstention requirement would not be limited merely to 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 considering the above, the Times News would be considered a business with which you, as an employee, are associated. Pursuant to Section 1103(a) of the Ethics Act, you as Chairman of the Board of Supervisors would generally have a conflict of interest in matters that would involve yourself, an immediate family, or a business with which you or a member of your immediate family is associated. You would specifically have a conflict of interest in matters that would involve the Times News or its private customer(s) /client(s). See Miller, supra; Kannebecker, supra. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above general principles, your specific inquiries shall be addressed. As to your first inquiry, you are advised that pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest with respect to voting to advertise County legal notices in the Times News and /or voting to approve the payment of bills submitted by the Times News. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With respect to your inquiry as to whether it would be a conflict of interest for you to vote to enter into contracts with, and /or to pay invoices to, companies related to the Times News, the submitted facts do not disclose the nature of the relationship between the companies at issue and the Times News. Therefore, only the following general guidance may be given. Given your employment with the Times News, the Times News would be considered a business with which you are associated. Whether you would have a conflict of interest with respect to matters involving a company related to the Times O'Gurek, 06 -590 October 11, 2006 Page 6 News would be dependent upon whether the company would also be considered a business with which you are associated. An affiliate or subsidiary of the Times News that is not a de facto separate corporate entity from the Times News would be considered a business with which you are associated. See, Confidential Opinion, 92- 003; Lowery, Advice of Counsel, 93 -559. Thus, you would have a conflict of interest in matters involving an affiliate or subsidiary that is not a de facto separate corporate entity from the Times News. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The requirements of Section 1103(f) of the Ethics Act with respect to contracting with the governmental body would have to be strictly observed where applicable. Where a conflict of interest would exist, you would still be permitted to participate under certain limited circumstances. In Garner, Opinion 93 -004, the Commission considered the issue of whether, under Section 3(j) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In applying Garner to the instant matter, you are advised that under Section 1103(j) of the Ethics Act, you would be permitted to second a motion only in a situation where: 1) the two remaining Commissioners would have opposing views; or 2) one of the other two Commissioners would be absent from the meeting. Allowing you to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Commissioners cast opposing votes, you would be permitted to vote to break the tie provided that you would satisfy the disclosure requirements of Section 1103(j). However ou could not speak to the motion or advocate your view in the matter; Section 1103) would only allow you to vote under the above circumstances. 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 County Code. O'Gurek, 06 -590 October 11, 2006 Page 7 Conclusion: As Chairman of the Board of Commissioners of Carbon County ("County "), you area ublic official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Times News, of which you are an employee, would be considered a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in your public capacity as Chairman of the Board of Commissioners in matters that would involve yourself, an immediate family member, or a business with which you or a member of your immediate family is associated, and you would specifically have a conflict of interest in matters that would involve the Times News or its customers /clients. You would have a conflict of interest as to voting to advertise County legal notices in the Times News and /or to approve the payment of bills submitted by the Times News. You would also have a conflict of interest in matters involving an affiliate or subsidiary of the Times News that is not a de facto separate corporate entity from the Times News. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Where a conflict of interest would exist, you would still be permitted to participate under certain limited circumstances. Under Section 1103(j) of the Ethics Act, you would be permitted to second a motion only in a situation where: (1) the two remaining Commissioners would have opposing views; or (2) one of the other two Commissioners would be absent from the meeting. Allowing you to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Commissioners cast opposing votes, you would be permitted to vote to break the tie provided that you would satisfy the disclosure requirements of Section 1103(j). 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 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