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HomeMy WebLinkAbout07-539 ConfidentialADVICE OF COUNSEL May 25, 2007 07 -539 This responds to your letters of April 2, 2007, and April 16, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a county A who, in another capacity, serves as solicitor for a municipality's [type of governmental body] but does not represent the municipality itself, would be prohibited from voting on grants and /or funding allocations to the municipality's general government. Facts: As Solicitor for County B, you have been authorized by certain County B As to request an advisory on their behalf as to their prospective conduct. You have submitted facts that may be fairly summarized as follows. County B has a C. County B As are permitted to maintain outside employment in addition to holding public office. One or more County B As are licensed, practicing attorneys who engage in the practice of municipal law and serve as solicitor to [type of governmental body] in townships and /or boroughs within County B. At times, As are required to vote to make grants or funding allocations to various municipalities within County B. You state that, in general, these grants or allocations are to accomplish specific community development projects, such as the paving of streets or the acquisition of open space. You have already provided legal advice that an A who provides legal services to a municipality should not vote, take part in deliberations, or seek to influence any other As on any matter regarding the municipality that the A represents. The narrow question that you pose is whether, pursuant to the Ethics Act, an A who serves as solicitor for a municipality's [type of governmental body] but does not represent the municipality itself would be prohibited from voting on grants and /or funding allocations to the municipality's general government. 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 Confidential Advice, 07 -539 May 25, 2007 Page 2 of 5 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 this advisory is limited to addressing the narrow question that you have posed. The County B As on whose behalf you have inquired (hereinafter referred to as "As ") are public officials 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 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 Confidential Advice, 07 -539 May 25, 2007 Page 3 of 5 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. "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. 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 anything of monetary value and no public official shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official 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 in the instant matter, you are advised that a public official /public employee generally would have a conflict of interest in his official capacity in matters involving a business with which he is associated and /or private clients. Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. You are further advised that although a pecuniary benefit flowing solely to a governmental body would not form the basis for a conflict of interest under Section 1103(a ) of the Ethics Act (see, Confidential Opinion, 01 -005; McCarrier, Opinion 98- 005; Warso, Order 974), where a governmental body or political subdivision would be a client of the public official /public employee or a business with which he is associated, such client relationship would itself support a finding of a conflict of interest in matters involving the client. Cf., Adams /Rendell (Re:McGinty), Opinion 07 -009; Kannebecker, supra. See also, Brueninq, Advice 02 -606. Confidential Advice, 07 -539 May 25, 2007 Page 4 of 5 In the instant matter, the question that you have posed is whether an A who is a solicitor would be prohibited from voting on grants and /or funding allocations to a municipality's general government if he represents the municipality's [type of governmental body] but does not represent the municipality itself. You note that a municipality provides the funding by which a [type of governmental body] employs legal counsel. [citej. However, it appears that the [type of governmental body] itself determines which attorney or firm shall represent it. Id. Additionally, under the submitted facts, there is no indication that the matters in question would impact the ability of the [type of governmental body] to retain a solicitor. Therefore, under the submitted facts, you are advised as follows. Absent any improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit an A from participating in matters involving grants and /or funding allocations to a municipality where: (1) the A serves as solicitor to the [type of governmental body] within the municipality but does not represent the municipality itself; and (2) such matters before the A would not impact the ability of the [type of governmental body] to retain a solicitor. 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 B C. Conclusion: The County B As on whose behalf you have inquired are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Absent any improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit such an A from participating in matters involving grants and /or funding allocations to a municipality where: (1) the A serves as solicitor to the [type of governmental body] within the municipality but does not represent the municipality itself; and (2) such matters before the A would not impact the ability of the [type of governmental body] to retain a solicitor. 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 Confidential Advice, 07 -539 May 25, 2007 Page 5 of 5 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel