Loading...
HomeMy WebLinkAbout85-598 LaValleMr. Gerald J. LaValle Beaver County Commissioner County of Beaver Courthouse, 3rd Street Beaver, Pennsylvania 15009 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 November 26, 1985 ADVICE OF COUNSEL 85 -598 RE: County Commissioner Participation, Contract Award, Son Employed by Contractor Dear Mr. LaValle: This responds to your letter of Septemher 6, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether any violation of the State Ethics Act is occasioned by your participation in the award of a contract to a company employing your son. Facts: You currently serve as a member of the hoard of county commissioners for the county of Beaver. You indicate that on September 11, 1984, the county received kids on a community development project known as the Monaca Sewer Line Reconstruction Project. The low bidder for this project was Martino Trucking, Incorporated, Rochester, Pennsylvania. The amount of the bid was $68,004.58. You indicate that this hid was approximately $19,000 below the next lowest bidder. Rased upon the recommendation of the county engineer and the community development director, the county hoard of commissioners, on October 16, 1984, approved an agreement with Martino Trucking, Incorporated, to provide for the construction and rellocation of sewer lines in the Borough of Monaca. You indicate that you, as a county commissioner, voted in favor of this contract while your son was employed by Martino Trucking Company, Incorporated. He had heen so employed by that company on both a part -time and full -time basis for a period of two years prior to Martino receiving this contract. Your son was neither an owner nor operator of this particular company. He served in a position as a laborer. You indicate that your son is twenty -three (23) years old and he is residing with you at your current residence. Finally, you indicate that Martino Trucking operates various construction projects at the same time. As a result, there was no indication as to whether your son would he working on the Monaca Borough project. You request the advice of the Ethics Commission as to whether your conduct in voting for the award of this contract in any way violated the State Ethics Act. Mr. Gerald J. LaValle November 2.6, 1985 Page 2 Discussion: As a county commissioner for Beaver County there is no doubt that you are a public official as that term is defined in the State Ethics Act. 65 P.S. 5402. As a result, your conduct must conform to the requirements of the Act. Steinman, 84 -006. Generally, there are various provisions of the State Ethics Act that must be considered in order to respond to your request for advice. Initially, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). In accordance with this provision, no public official may use his public office or his vote as a public official , to benefit himself or member of his immediate family. The term immediate family is defined in the Ethics Act as a spouse residing in the official's household or a minor dependent child. Your son is not a member of your immediate family as that term is defined in the State Ethics Act because he is not a minor dependent. This is so even though he resided with you. There is no indication that your vote in this matter was based upon any confidential information or that you otherwise personally benefitted from the award of this contract to Martino Trucking. Thus, under these circumstances, there would have been no violation of Section 3(a) of the Ethics Act. In addition to the foregoing, the Ethics Act also provides that no public official or employee or member of his immediate family or any business with which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity of the company at fair market value shall enter into a contract valued at 3500 or more with a governmental body unless the contract has been awarded through an open and public process. 65 P.S. 5403(c). Initially, it is clear that neither you nor your son are officers, owners, directors or holders of stock in Martino Trucking, Incorporated. Additionally, it appears from the information that you have provided, that the contract was in fact awarded through an open and public process. Public notice of the contract availability was evidently published and bids were accepted. The contract was awarded to the lowest bidder. Based upon all of these factors, it appears as though there was no violation of Section 3(c) of the State Ethics Act. Mr. Gerald J. LaValle November 26, 1985 Page 3 Additionally, the Ethics Act provides that the State Ethics Commission may address other areas of possible conflict. 65 P.S , 5403(d). The parameters of this provision of law may be generally reviewed within the general purpose and intent of the State Ethic Act. That purpose and intent is specifically outlined in Section 1 of the State Ethics Act which provides that the citizens of the Commonwealth have a right to he assured that the financial interests of holders of public office present neither a conflict nor the appearance of a conflict with the puhlic trust. 65 P.S. f$401. Based upon that provision of law, this Commission in the past has determined that while activity of the type in question here may not violate the strict provisions of the previously cited sections of the Ethics Act, Section 1 of the Ethics Act would require a puhlic official's abstention in a matter involving a member of the official's family who is not within the strict definitions as outlined above. As a result, the Commission has previously concluded that puhlic officials should not participate in a decision involving the hiring of his adult son as a township employee. O'Reilly, 83 -012. Additionally, the Commission has ruled that a county commissioner could not sit on a salary board and vote for the salary of her brother as director of the county planning agency in that county. Leete, 82 -005. More recently, the Commission has found that the actions of a township supervisor that operated to benefit his adult daughter who was a township employee was similarly not in accord with the intent and purpose of the Act. Cumherledge, 216R. See also Clark, 84 -626. Thus, while there appears to have been no violation of Section 3(a) or Section 3(c) of the Ethics Act when you voted to award the contract to Martino Trucking Company, it would be the better practice in future situations to abstain from participation in any matter that would effect your son or the business which employs your son. In this respect, both the intent and purpose of the Ethics Act will he advanced. While we acknowledge the fact that the bid in question here was in fact awarded to the lowest bidder, the actions of a public official in voting in a matter wherein the public perceives him as having an interest creates the type of perceptions that the Act was intended to prevent. Conclusion: Your participation and vote in the award of a contract to Martino Trucking Company did not violate the provisions of Section 3(a) or 3(c) of the Ethics Act. However, within the intent and purpose of the Ethics Act it would be the better practice in future situations to abstain from participation in any matter that would affect your son or the business which employs your son. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Mr. Gerald J. LaVal le November 26, 1985 Page 4 J JC/ rdp This letter is a public record and will he made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si ncerely, n J. Con: o General .unsel