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HomeMy WebLinkAbout84-636 BennerMr. Howard L. Benner Jr. Beavertown, PA 17813 December 26, 1984 ADVICE OF COUNSEL RE: Public Official, Contracting 84 -636 Dear Mr. Benner: This responds to your letter of December 5, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether as a School Board Director you or a service garage business may engage in contracting under certain circumstances with the School District. Facts: You are a member of the Board of Directors, serving with the Midd -West School District, hereinafter, the District, and as such requested advice from the State Ethics Commission. You request advice at the suggestion of the field auditors from the Auditior General's Office concerning the propriety of your voting on certain issues which may come before the Board of School Directors of the District, hereinafter, the Board. You were elected to the Board in 1981 for a four year term. You are also employed as a parts manager at Super Service Garage, hereinafter, the Garage. Your wife is also employed by the Garage as a secretary - bookkeepper. You are both paid on an hourly basis for the services you provide to the Garage. The Garage is a sole proprietorship owned by one Kenneth P. Narehood. Mr. Narehood is also your father -in -law. The Garage has contracts to provide service to the District. Field auditors of the Auditor General's Office question whether you should vote on District matters relating to transportation. You believe that as an elected official the voters of the District wanted you to represent them and that they knew that you are employed by the Garage when you were elected. However, you are seeking our Advice on this point. Mr. Howard L. Benner Jr. December 26, 1984 Page 2 Discussion: Initially, the Ethics Commission notes that as a member of the Board of the District you are a public official within the definition of that term under the Ethics Act. See 65 P.S. 402. As such, you are subject to provisions of the Ethics Act and must conform your conduct to the requirements of the Act. See 65 P.S. 401 et seq. While the Ethics Act contains some restrictions against contracts between the business with which a "public official" or "public employee" is associated and the governmental body with which the official or employee is associated, the Ethics Act does not totally prohibit a public official or employee or his family or business from engaging in business activities or contracting, in general with the body the official or employee serves. Section 3(a) of the Ethics Act does provide that no public official or public employee shall use his public office or any confidential information obtained through holding of a public office or position to acquire financial gain for himself, his immediate family, or a business with which he is associated. See 65 P.S. 403(a). A "business with which he is associated" is defined in the Ethics Act as follows: "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 holder of stock. 65 P.S. 402. For purposes of this Advice, we have been provided with facts to establish or can assume that both you and your wife are employees of the business (the Garage) which would seek to or does contracting with the District. As such, then you both would be "associated" with this business and as a "public official" you would be required to observe the prohibitions set forth in Section 3(a) of the Ethics Act vis -a -vis the Garage . This means that you could not use your position as a Board member to secure financial gain for this Garage and could not use any confidential information acquired through the holding of public office or employment to the benefit of the Garage. Thus, primarily, you should not participate in any decisions, discussions, or recommendations that would lead the District to award the contracts in question to this Garage. While you may be able to discuss or vote on transportation questions, in general, you should abstain from votes /decisions which would result in the award or approval of contracts to this Garage or to deny same to competitors of the Garage, so that only the Garage is remaining to be selected for such work. Mr. Howard L. Benner Jr. December 26, 1984 Page 3 We should mention in conclusion that Section 3(c) of the Ethics Act does not apply to this situation because the facts, as we understand them, are such that neither you nor a member of your immediate family (a spouse living within you household a minor dependant child) is an officer, director, or owner of greater than 5 percent of the equity at fair market value of the Garage. Thus, there is no specific application of Section 3(c) of the Ethics Act which would require that any contract made between the District and the Garage could be awarded only after an open and public process. However, the above discussion with respect to abstention should be complied with in order to meet the requirements of Section 3(a) of the Ethics Act. Also we assume that Section 3(b) of the Ethics Act has been complied within this matter. Section 3(b) of the Ethics Act states: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We mention this provision of the Ethics Act, not to imply that there has been any impropriety in this case, hut in an effort to provide a complete response to your inquiry. Conclusion: Under the facts as have been set forth above, you are a "public official" or "public employee" as those terms are defined in the Ethics Act and must conform to the requirements of the Ethics Act. Assuming that both you and your wife stand are employees of the Garage involved, and that the Garage seeks to contract with the governmental body with which you are associated, the District, the requirements of Section 3(a) and 3(b) mandate that: 1. You should not have anything to do with the Board or Districts decisions, votes, discussions regarding the awarding of contracts or work to this Garage; Mr. Howard L. Renner Jr. flecember 26, 1984 Page 4 2. no confidential information acquired or received through the holding of your public position be used to obtain advantages or financial gain for this business; and 3. the requirements of Section 3(b) of the Ethics Act must be observed, in that nothing of value including the promise of future or the continuation of present employment can be offered, accepted or solicited in exchange for or to influence your official judgment with respect to this Garage. 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. SSC /sfd 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, ndra S. 1:tianson General Counsel