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HomeMy WebLinkAbout80-737 YoderDavid K. Yoder Yoder Printing P.O. Box 421 Scottsdale, PA 15683 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 8, 1980 ADVICE OF CHIEF COUNSEL RE: Borough Councilmen, Contracting Dear Mr. Yoder: "Public Official - Any elected or appointed official in the Executive, Legislative, or Judicial Branch of the State or any political subdivi- sion thereof..." 80 -737 This responds to your letter of October 4, 1980 in which you, as Scottsdale Borough Councilman, requested an Opinion from the Ethics Commission. Issue: In your letter you request advice as to whether a borough councilman may do printing work for a maintenance service that has contracted with the borough to provide trash hauling services. Facts: You informed us that you are a councilman is Scotts- dale Borough and the proprietor of a printing shop in the same municipality. Yoder Printing is the prime printer for Y & S Maintenance. Y & S Maintenance has contracted with the Borough to provide garbage pick -up service. The printing Yoder Printing has done for Y & S Mainte- nance has not had anything to do with Y & S Maintenance's contract with the Borough. You advised us that you would not do printing for Y & S Maintenance's Scottsdale Borough operation. Discussion: There is no doubt that as a borough councilman you are a "public official" as that term is defined by the Ethics Act in Section 401: Accordingly, the Ethics Act governs your conduct. In pertinent part Section 3 provides as follows: David K. Yoder December 17, 1980 Page 2 "Section 3, Restricted Activities; (a) No public official or public employee shall use his public office or any confidential infor- mation 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. (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 for candidate 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(a) & (b)." emphasis added. In a case factually similar to yours, the Commission held that Section 3 quoted above clearly forbids you from using your office to obtain printing work. Sowers 80 -050. Further, Y & S Maintenance may not attempt to influence your vote as borough councilman on any matter involving Y & S Maintenance by holding out the "promise of future employment." While it is not a per se violation of the Ethics Act for you to do printing for a business that has a contract with the borough, there are "other areas of conflict" pursuant to Section 3(d) which might be perceived in the relationship between you as printer for a firm doing business with the borough and you as a borough councilman. id. An appearance of a conflict may arise when you as a councilman must vote to approve or to disapprove a contract between one of your customers and the borough and whether you may contract with a business that contracts with the borough. The answer to the question depends on the facts and the timing of the relationship between the councilman and the business contracting with the borough, in accord with the principles developed in Sowers, 80 -050. David K. Yoder December 17, 1980 Page 3 First, if a councilman knows at the time of his vote that he has been or can legitimately expect to be asked to do work for the borough contractor in relation to the contract with the borough - Y & S Maintenance, in the facts you gave us - or that he will offer his services to the borough contractor, the councilman should refrain from voting on the contract and state his reasons for doing so. A legitimate expectation of work can arise from many factors: the fact that the councilman has worked for the borough contractor in the past, the fact that the councilman does similar work for other operations of the borough contractor, for example. If, however, the councilman has not worked for and has no legiti- mate expectation of working for the borough contractor or offering his services to the borough contractor on the contract with the borough, the councilman may and should vote on the contract. Second, if the councilman who has voted on a contract subsequently obtains employment or acquires a contract with a borough contractor in relation to the contract with the borotigh and on whose contract he voted, this employment should be publicly disclosed. Public disclosure of employ- ment by the borough contractor in relation to the contract with the borough should be made at the next public meeting of the borough council and should be made part of the minutes of the meeting. The council should then refrain from voting on any matters subsequently arising regarding that contract. As to your second question, the Ethics Act was not meant to prevent public officials from engaging in business with the general public or members of the community who also do business with the municipality. You can do work for busi- nesses that have contracts with the borough but you must not use your position as a public official to obtain such work nor must such work be offered as an attempt to influence your official action, vote or judgement. 65 P.S. §403(a) & (b), Sowers, 80 -050. Conclusion: As a public official (borough councilman) your conduct in relation to a borough contractor in relation to a contract with your borough and from whom you may obtain work should be governed by the above Discussion. Specifically, you must: (1) Not use your official position to obtain such employment; (2) Not use confidential information gained in your official position to secure such employment; (3) Refrain from voting on a contract where you will seek, have been asked or can legitimately expect being asked to perform work for the contrator related to the contract with the borough; David K. Yoder December 17, 1980 Page 4 (4) Refrain from voting on matters related to a borough contractor whom you obtain /secure work where you as a borough councilman may be asked to vote on these matters which arise after you have obtained /secured such work; (5) Make public your relationship with the borogh contractor and the reasons for your abstention as explained in (3) and (4) immediately above. 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. SW /rdp Sincerely, andra S. C istianson General Co4nsel