HomeMy WebLinkAbout90-521 ChristineDear Mr. Christine:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 20, 1990
Mr. E. David Christine, Jr. 90 -521
Office of the District Attorney
Commonwealth of Pennsylvania
County of Monroe
Courthouse
Stroudsburg, PA 18360
Re: Conflict, Public Official /Employee, Contracting, Township
Supervisor, Non - Profit Fire Department.
This responds to your letter of February 2, 1990 in which
you requested advice from the State Ethics Commission.
Issue: Whether a supervisor of a second class township or a
business with which she is associated under the Public Official
and Employee Ethics Law may engage in contracting under certain
circumstances with a privately chartered non- profit fire
department.
Facts: Rose Schoch is a duly elected supervisor in Hamilton
Township, Monroe County who took office in January, 1990. Mrs.
Schoch is a part owner of a private gasoline station which sells
fuel to the township fire department, the Blue Ridge Hook and
Ladder Company No. 1, which is a privately chartered not for
profit organization registered in the Commonwealth of
Pennsylvania. Blue Ridge is an all volunteer fire department and
receives all of its funding from donations, fund raisers, state
loans and other financing and subsidies given to the fire
department by Hamilton Township by the vote of a majority of the
Board of Supervisors. Before Mrs. Schoch became a township
supervisor, the gasoline station would supply fuel to the fire
trucks on a regular basis. Since Mrs. Schoch has been elected
supervisor, she inquires as to whether her gas station may
continue to sell gasoline to vehicles owned and operated by the
Blue Ridge Hook and Ladder Company No. 1. Mrs. Schoch is a
member of the fire department auxiliary but is not an officer of
the Blue Ridge Hook and Ladder Company No. 1. In addition, as an
auxiliary member, she does not have any voting rights on matters
Mr. E. David Christine, Jr.
Page 2
affecting the affairs of the fire department. On behalf of Mrs.
Schoch, you inquire as to whether her gasoline station may
continue to supply gasoline to the fire trucks now that Mrs.
Schoch is a township supervisor.
Discussion: As a supervisor for Hamilton Township, Mrs. Schoch
is a "public official" as that term is defined in the Ethics Law
and hence she is subject to the provisions of the Ethics Law. 65
P.S. 5402; 51 Pa. Code S1.1.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined under the Ethics Law:
Section 2. 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. "Conflict" or
"conflict of interest" .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
or 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.
Mr. E. David Christine, Jr.
Page 3
"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.
"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. "Contract" 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.
In addition, Section 3(b) and 3(c) of the Ethics Law 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 any thing of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference
is made to these provisions of the law not to imply that there
has or will be any transgression thereof but merely to provide a
complete response to the question presented.
Finally, contracting restrictions as to public officials/
employees are provided in Section 3(f) of the Ethics Law as
follows:
Section 3. Restricted activities.
(f) 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
Mr. E. David Christine, Jr.
Page 4
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.
In applying the above provisions of the Ethics Law to the
instant matter, we note that Section 3(a) of the Ethics Law does
not prohibit public officials /employees from outside business
activities; however, the public official /employee may not use the
authority of office for the advancement of his own personal
financial gain. Thus, although .Mrs. Schoch would not be
prohibited under Section 3(a) of the Ethics Law from engaging in
an activity which would sell gasoline to the Blue Ridge Hook and
Ladder Company No. 1, she could not perform her private business
using governmental facilities or personnel. In addition, she
could not during government working hours, solicit to promote
such business activity. Subject to the qualifications noted
above, Section 3(a) of the Ethics Law would not prohibit her from
entering into the private business arrangement.
As to Section 3(f) of the Ethics Law quoted above, this
provision of law has strict requirements whenever a public
official /employee would contract with his governmental body.
The term "governmental body with which a public official or
public employee is or has been associated" is defined as follows:
Section 2. Definitions
"Governmental body." Any department,
authority, commission, committee, council,
board, bureau, division, service, office,
officer, administration, legislative body, or
other establishment in the Executive,
Legislative or Judicial Branch of. a State, a
nation, or a political subdivision thereof or
an agency performing a governmental function.
Mr. E. David Christine, Jr.
Page 5
In this case it is clear that the governmental body with
which Mrs. Schoch is associated is Hamilton Township but not the
Blue Ridge Hook and Ladder Company No. 1. Accordingly, the
provisions of Section 3(f) of the Ethics Law quoted above would
not have application.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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 Law.
Conclusion: As a supervisor for Hamilton Township, Mrs. Schoch
is a public official /employee subject to the provisions of the
Ethics Law. Although Section 3(a) of the Ethics Law would not
preclude the public official /employee or a business with which
she is associated from selling gasoline through her service
station to the Blue Ridge Hook and Ladder Company No. 1, she
could not use the authority of office to obtain such business and
such business activity may not be conducted using governmental
facilities or personnel. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Law.
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.
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 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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Vincent J. Dopko,
Chief Counsel