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HomeMy WebLinkAbout80-721 MahoneyDear Mr. Mahoney: Paul V. Mahoney Buck, Margolis, Mahoney & George P.O. Box P 92 E. Main Street Uniontown, PA 15401 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 9, 1980 ADVICE OF COUNSEL RE: Councilman, Contract, Engineering Firm 80 -721 This responds to your inquiry of September 22, 1980, in which you requested an opinion as Solicitor of the City of Connellsville. Issue: You request an opinion as to whether a member of the Council of the City of Connellsville who is also an employee of an engineering firm which furnishes engineering services to the city is placed under any restrictions by the Ethics Act or by the Third -Class City Code? Facts: You indicate that the councilman in question is an employee of an engineering firm. This councilman is also the nephew of the owner of the firm. However, the council- man - employee receives only a salary from the firm and does not share in the profits of the firm. In addition, the councilman - employee makes no policy decisions on behalf of the engineering firm and has no ultimate voice in the manage- ment of the engineering firm. Discussion: Your letter cites several provisions of the Third -Class City Code which place restrictions on officials elected to positions in cities of the third -class in regard to the interest that they may have in contracts with entites doing business with the city. Initally, I must note that it is not within the jurisdiction of the Ethics Commission to interpret the provisions of the Third -Class City Code or any other of the municipal codes within the Commonwealth. Our jurisdiction extends only to interpretations of the provi- sions of the Ethics Act. Therefore, your inquiry will be reviewed in light of the provisions of the Ethics Act. Paul V. Mahoney October 9, 1980 Page 2 In regard to the Ethics Act the provisions which are most pertinent to your inquiry are contained in Sections 3(a) and 3(c). These sections are reprinted below for easy reference: "(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." As you can see the provisions of Section 3(c) would not be applicable to prohibit the contract between the city and the engineering firm which would employ this councilman. This is apparent because the contract in question would be with the firm and not with the councilman primarily. In addition, the councilman in question on the facts which you present does not own or hold stock exceeding 5% of the equity of this business. Thus, the Ethics Act would not require that a contract made between the city and the engineering firm be conducted in an open and public manner even though other provisions of other acts may impose such a requirement. Paul V. Mahoney October 9, 1980 Page 3 Section 3(a) of the Ethics Act, however, and prior decisions of the Ethics Commission would indicate that the councilman in question, in order to avoid the appearance of a conflict of interest, as required by Section 1 of the Ethics Act, should refrain from voting on any contract or aspect of the hiring of the engineering firm for work done for the city. In other words, Section 3(a) would require that the councilman as a public official could not in any manner use his public office to secure financial benefit for his firm. The firm, of course, could bid on contracts which were proposed by the City. Conclusion: The Ethics Commission is not authorized to make rulings in regard to the Third -Class City Code. However, in regard to the Ethics Act itself the councilman in question should refrain from voting on any matter involving the hiring of the engineering firm by which he is employed, in order to avoid the appearance of any conflict of interest. The engineering firm itself would not be precluded by the Ethics Act from presenting bids for public works projects for the city or from accepting any contract so awarded. 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 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 Sincerely, n Sandra S. Christianson General Counsel