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HomeMy WebLinkAbout80-717 PainterMrs. Laura Painter Box 92 Claridge, PA 15623 Dear Mrs. Painter: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 9, 1980 ADVICE OF COUNSEL RE: Township Commissioner, Contract, Spouse 80 -717 This responds to the letter of Leslie J. Mlakar, Esquire of September who wrote to the Ethics Commission requesting an opinion on your behalf. Issue: The question raised in that communication is whether any conflict of interest exists under the Ethics Act where the spouse of a township commissioner is also an employee of an engineering firm which may perform contract service work for-the township. Facts: The letter indicates that you are an elected town- ship Commissioner for the Township of Penn, a First -Class Township located in Westmoreland County. Your husband has recently been offered a job with an engineering firm, Neilan Engineers as a laborer and carpenter. Neilan Engineers periodically performs work for the Township of Penn on a contract - service basis. These contracts relate to specific projects, for example, sewer construction and rehabilitation projects. In addition, Neilan Engineers is involved in developing applications for community development funds which may be presented by the Township of Penn. Discussion: There is no question that as an elected official in the township you are a "public official" as that term is defined in the Ethics Act. Therefore, the Ethics Act would apply to you. The most pertinent provisions of the Ethics Act are Section 3(a) and 3(c). These sections are repeated below for easy reference: Mrs. Laura Painter October 9, 1980 Page 2 "(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." "(c) 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 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. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract." In regard to these provisions of the Act the Commission has rendered several decisions which are applicable and pertinent to your question. Specifically, the Commission's Opinion in Kilmer, 79 -037 indicates that any contract let specifically to your husband valued at $500 or more with the Township of Penn would have to be let in accordance with an open and public bid process. However, since the contract in question in your circumstance would not be with your husband but rather with Neilan Engineers, the open and public bid requirements of Section 3(c) would not be applicable. However the provisions of Section 3(a) do apply and would preclude you from using your public office to obtain financial gain for either yourself or a member of your immediate family. Thus, as your Counsel recognizes, it would be imperative for you to abstain from voting on any Mrs. Laura Painter October 9, 1980 Page 3 aspect of hiring Neilan Engineers for work done in the township to avoid the appearance of any posssible confict under Section 3(a) of the Ethics Act. This requirement is similar to that requirement imposed by the Commission in Stewart, 79 -070. Basically, the Ethics Act does not prohi- bit simultaneous employment by a governmental body or poli- tical subdivision of an elected official and his or her spouse so long as the requirements of Section 3(a) of the Ethics Act are met. See Beck, 79 -018. Conclusion: The hiring of your spouse by Neilan Engineers does not constitute any conflict of interest, per se, with your role as a public official in the Township of Penn. Such employment of your husband by Neilan Engineers, where that firm does contract work for the township, might give rise to the appearance of a conflict and under Section 3(a) of the Ethics Act you should refrain from voting on any matter or aspect of hiring Neilan Engineers for work to be done in the township. 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 civi 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 avail- able 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp cerely, GLZ‘GL� (i f ! andra S. Chr st i on ��``� General Coun el