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HomeMy WebLinkAbout81-551 AsteakGary N. Asteak, Esq. 726 Walnut Street Easton, PA 18042 RE: Township Police, Contracts Dear Mr. Asteak: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 15, 1981 ADVICE OF COUNSEL 81 -551 This responds to your letter of February 25, 1981, in which you, as a Township Solicitor, requested an opinion from the Ethics Commission. Issue: You asked for advice as to whether the Ethics Act prohibits the Township from buying equipment from a business owned by the Township police chief when: (1) the purchase is valued at less than $500; (2) the purchase is valued at greater than $500 if an open and public bidding process is used. You also request advice as to whether the police chief's business may sell equipment to other municipalities. Facts: The Township Police Chief and one of the Township police officers have established a business selling police supplies and equipment. The business sells items that the Township purchases in the normal course of administering the Township. You indicate that purchases of less than $500 will be made without public bidding and that purchases of more than $500 will be made through an open and public process. Further, the police chief's business will sell police equipment to other municipalities in the area. Dicussion: The regulations promulgated by the Commission state that a Police Chief is to be considered a "public employee" as that term is defined by the Ethics Act, 65 P.S. §401 et seq. Under Section 2 of the Act a public employee is any individual employed by a political subdivision of the Commonwealth who is responsible for taking or recommending official action of a non - ministerial nature with regard to, inter alia, contracting and other activities with a greater than de minimus economic impact on the interests of any person. The duties of a Police Gary N. Asteak, Esq. April 15, 1981 Page 2 Chief are non - ministerial in nature and have greater than a de minimus economic impact on various persons. Therefore, a Police Chief is subject to the restrictions placed by the Ethics Act on his or her conduct. More specifically the Act provides that no public employee 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 may contract with a governmental body only where the contract is awarded through an open and public process - if the contract is valued at $500 or greater. 65 P.S. §403(c). If the contract between the Township and the Police Chief's business is valued at less than $500 it may be awarded without an open and public process. Contracts valued at more than $500 must be awarded through an open and public process. The Commission has defined "open and public process" as: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Provided these criteria are met, and a competitor of the Police Chief is given an opportunity to bid on the contract, the Township may buy equipment from the Police Chief's business. Howard, 79 -044. Section 1 of the Ethics Act also requires public employees to avoid the appearance of any conflict of interest. In order to avoid any appearance of a conflict of interest the Police Chief may not recommend or participate in the review and /or decision as to police supplies /equipment where his business may be utilized regardless of the amount of money involved. The above restrictions apply only to contracts between the Township and the Police Chief's business. The Act restricts contracts between the public employee and the governmental body with which he is associated. Accordingly, the Police Chief's business may contract with other municipalities without reference to the restrictions discussed previously. Conclusion: A Police Chief is a public employee subject to the Ethics Act. A contract between a public employee (here the Police Chief) and the governmental body (here the Township) valued at more than $500 must be awarded in an open and public process meeting the following criteria: Gary N. Asteak, Esq. April 15, 1981 Page 3 (1) Prior public discussion; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. A reasonable competitor of the Police Chief must have an opportunity to prepare and submit a proposal. The Police Chief must refrain from recommending and /or reviewing and participating in the decision of the Township to purchase police supplies and /or equipment from his business regardless of the amount in question. A public employee may contract with municipalities other than the governmental body with which he is associated without reference to the above restrictions. 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 available 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 Since -rely, Sa dra S. Ch stianson General Co sel