HomeMy WebLinkAbout79-545 JordenTO:
STATE ETHICS COMMISSION
P. 0. Box 1179
Harrisburg, PA 17108
ADVICE OF CHIEF COUNSEL
October 26, 1979
William T. Jorden, Esquire
501 Marine Bank Building
Erie, Pennsylvania 16501
RE: Business interests of borough councilmen
FACTS:
Advice Number 79 - 545
On September 24, 1979, William T. Jorden, Esquire,
wrote the Commission setting forth the following
questions:
(1) A Borough councilman is an insurance broker and
has in the past sold insurance to the Borough;
(2) One councilman is the proprietor of a local hard
wire store, which store sells incidental supplies to
the Borough;
(3) One councilman is the owner of a gasoline station
and sells gas and makes repairs to the Borough vehicles;
and,
(4) One councilman is a principal shareholder in a
farmingtype operation, the corporation leases a small
tractor for sidewalk snow removal in the Borough.
DISCUSSION:
The first issue is whether a borough councilman is
a public official or not. The second issue is whether
Section 3(c) governs their business and dealings with
the borough.
Since borough councilmen are elected to a political
subdivision of the Commonwealth, they are public officials
as defined by Section 2 of Act 170.
Section 3(c) requires:
No public official or public employee or a
member of his immediate family or any business
in which the person or a member of the person's
immediate family is a director, officer, owner
79-
William T. Jorden
October 26, 1979
page 2
or holder of stock exceeding 5% of the
equity at fair market value of the business
shall enter into any contract valued at
$500 or more with a governmental body
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.
If any of these individuals are contracting with the
borough for $500 or more, then the contract must be
awarded through an open and public process as defined
in Section 3(c). The $500 requirement is for each
contract, although the purposes of the Act may not be
subverted by making one large contract in excess of
$500 into 12 small contracts to be signed monthly of
less than $500.
Our Act requires a reasonable interpretation of the
law, and emergency purchases would not require an open
and public process, although there should be subsequent
disclosure of the purchases which were made and the
costs of those purchases, see Walker, 1979 -50.
We will advise you at a later date as to the filing
requirements of public officials and public employees.
CONCLUSION:
Borough councilmen are public officials and must
comply with the "open and public process" requirements
of Section 3(c) in dealing with the borough councilmen
where the individual contracts are valued at $500 or
more.
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request, if you
feel this reply does not suffice. This letter is a
public - record and will be made available as such.
AV • RITTENHOUSE MORRISON
Chief Counsel