HomeMy WebLinkAbout81-591 SolomonJack E. Solomon
1400 Allegheny Building
Pittsburgh, PA 15219
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
July 17, 1981
ADVICE OF COUNSEL
81 -591
RE: Conflicts of Interest, State College Trustees, State
College Faculty
Dear Mr. Solomon:
This responds to your letter of June 8, 1981 in which
you requested an opinion from the State Ethics Commission.
Issue: You requested advice as to whether it is a violation
of the Ethics Act for:
1. A person who owns a business and is a director of
a bank to be appointed to the Board of Trustees
of a state college that does business with the
bank and deals with his business;
2. A state college faculty member who owns a research
corporation to contract with the college for the
use of its computer services.
Facts: In relation to situation number 1 above you informed
us that Slippery Rock State College is considering appointing
an individual to its Board of Trustees. This person owns a
business and is on the Board of Directors of a Bank. Both
the business and the Bank deal with Slippery Rock State
College.
In relation to question number 2 above you also told us
that a faculty member at Edinboro State College owns a
research corporation. The faculty member wants to contract
with the College for the use of the College computer services.
You have already advised the College that such contracts
should be made only after an open and public process.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Jack E. Solomon
July 17, 1981
Page 2
Discussion: In relation to situation number 1 above the
trustees of a State College who are not compensated beyond
reimbursement for actual expenses are not considered within
the perview of the State Ethics Act for purposes of filing
Financial Interest Statements. See 65 P.S. Section 402,
Newton, 80 -025. Nevertheless, the trustees hold a position
of public trust and must abide by the Ethics Act and its
prohibitions against conflicts of interest or the appearance
of a conflict of interest. Accordingly, any contract
between the trustee, his business or the Bank on which he
serves as a director and the College should conform to the
open and public process requirements of Section 3(e) of the
Ethics Act 65 P.S. 403(e).
Such a process should be applied to any contract valued
at more than $500 and should provide for prior public notice
and prior public disclosure of all proposals considered and
public disclosure of the award of the contract. A reason-
ableness test is employed in deciding if the process meets
these criteria. The process is considered "open and public"
if a reasonable and prudent competitor of the potential
trustee interested in the contract to be awarded has time to
avail himself or his business of that contract opportunity.
See Howard, 79 -044.
Likewise, in relation to situation number 2 outlined
above, while the State College faculty member is not to be
considered a "public employee" for purposes of filing
Financial Interest and Disclosure Statements, he must
nevertheless, as you recognize, comply with the provisions
of the Ethics Act relating to conflicts of interest. In
this regard, this individual who might seek to contract with
the college would be required to follow the procedures of
Section 3(c) of the Ethics Act outlined above, relating to
the open and public process.
In each of these cases if the trustee or the faculty
member has any role in voting to award the contract to a
business with which he is associated or on which he serves
as a director the individual should abstain from discussing
and /or voting to make such an award. The individual should
also place the reasons for such abstention on the public
record. See Sowers, 80 -050. Of course, no person may use
confidential information obtained through his public employment
or public office to secure such a contract for himself or
for a business for which he is associated. See Section 3(a)
of the Ethics Act, 65 P.S. 403(a).
Jack E. Solomon
July 17, 1981
Page 3
Conclusion: A trustee or a faculty member as described
above must conform his conduct to the requitements of the
Ethics Act as set forth in this Advice. There is no inherent
conflict of interest in either of the situations in which
you present but each person must avoid the appearance of a
conflict of interest or an actual conflict of interest as to
any contracts between the Colleges and the business with
which they are associated. In no event may any person in a '
position of public trust misuse his public office by using
confidential information to acquire a contract or a business
opportunity for himself or a business with which he is
associated.
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.
SSC /rdp
Sincerely,
4S
dra S. A ristianson
General C•unsel