HomeMy WebLinkAbout80-560 ShellenbergerTO:
FACTS:
DISCUSSION:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 3, 1980
ADVICE OF CHIEF COUNSEL
Elizabeth M. Shellenberger
729 Main Street
Schwenksville, PA 19473
Advice # 560
On August 10, 1979, Elizabeth M. Shellenberger,
President of Council of the Borough of Schwenksville, wrote
this Commission asking for an advisory opinion on three
questions.
Her first question asked whether the borough could do
business with its plumbing inspector. The next question asked
if the borough could do business with a member of the borough
authority who owns a local lumber company and who also serves
as an elected auditor for the borough. Her third question
asked whether the spouse of an auditor may do business with
the borough.
The threshold issue is whether these individuals are
subject to the State Ethics Act as public employees and
public officials, and if so how may the Borough of Schwenksville
deal with these individuals in conformance with the State Ethics
Act.
The State Ethics Act defines public employee as including
"any individual employed by... a political subdivision who is
responsible for taking or recommending official action of a
nonministerial nature with regard to... inspecting." A plumbing
inspector is clearly a public employee and is required to file
annually a Statement of Financial Interests with the Borough of
Schwenksville.
Elizabeth M. Shellenberger
March 3, 1980
Page 2
Section 3(c) of the State Ethics Act provides that "no
public official or public employee... shall enter into any
contract valued at $500 or more with a governmental body [with
which he is 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
in contracts awarded." Therefore, the Borough of Schwenksville
may not enter into any contract valued at $500 or more unless the
"open and public process" requirements of Section 3(c) are met.
These requirements are met by a public announcement at a council
meeting that certain plumbing supplies are needed and the plumbing
inspector has offered to supply these supplies and services for
a certain amount. This would give opportunity for fair competition
among other plumbers as well as the best return on the citizen
tax dollar, and meet the requirements of Section 3(c) of the Act.
The contract may then be awarded at the next borough council meeting.
Formal advertisement is not necessary.
If an emergency arises, the Act, of course, does not
require that the borough must place property or life in
danger in order to meet the "open and public process"
requirements of the State Ethics Act. However, if a contract
is to be awarded for emergency services on a hourly basis in
anticipation of such emergnecy services, such a contract must
be awarded through "an open and public process."
A person who serves on the Borough Authority without
compensation is not a public employee under the State Ethics
Act. If, however, he is also an elected auditor, he is a public
official and is required to file a Statement of Financial Interests
annually with the Borough Secretary, and with the Commission in
the year he /she runs for office. There is no conflict of interest
in the borough doing business with this lumber company providing
the requirments of Section 3(c) of the State Ethics Act are met
as above.
The third question dealt with the spouse of an auditor.
Section 3(c) also applies to a member of ones immediate family,
and the Act defines "immediate family" to be "a spouse residing
in the person's household and minor dependent children." Therefore,
the same standards which apply above under Section 3(c) would
also apply to doing business with the auto repair shop.
Elizabeth M. Shellenberger
March 3, 1980
Page 3
DRM /rdp -2
This opinion was requested on August 10, 1979. The Act
requires an answer within 21 working days. It was not possible
to give an answer within that time period because of necessity
of drawing up regulations relating to the very questions being
asked. However, any contracts awarded between August 31, and
the date of the receipt of this letter which do not meet the
requirments of the State Ethics Act are hereby excused.
CONCLUSION:
A Plumbing Inspector is a public employee, and is subject
to the "open and public process" requirements of Section 3(c)
of the State Ethics Act in doing business with the borough
council. A township auditor and spouse of a township auditor
is likewise subject to the same requirments of Section 3(c). Any
contracts issued in violation of Section 3(c) between August 31
and the date of receipt of this advice of chief counsel are
hereby excused.
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.
d1 14 4411 ‘ )- ( - 1.}
DAVID RITTENHOUSE MORRISON
Chief Counsel