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HomeMy WebLinkAbout81-607 DavidsonDiane R. Davidson • Center Township Supervisors 419 Sunset Drive Butler, PA 16001 RE: Section 3, Township Supervisors Dear Ms. Davidson: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 25, 1981 ADVICE OF COUNSEL 81 -607 This responds to your letter of June 24, 1981, in which you requested an opinion from the Ethics Commission. Issue: You asked for advice as to whether a Supervisor and his employer can perform services for the Township. Facts: One of the Center Township Supervisors is employed by a business that does not do business with the Township at the present time. The Township may seek the services of the business in the future. Discussion: The Ethics Act, 65 P.S. 5401 et seq., defines "public official" as "Any elected ... official in the Executive, Legislative or Judicial Branch of the state or any political subdivision thereof ..." Id, §402. An elected supervisor is clearly a public official under the statutory definition and must conform his conduct to the dictates of the Act. A public official cannot use his public office or confidential information received through his holding public office to obtain financial gain for himself, his family or a business with which he is associated. 65 P.S. 5403(a). The Supervisor cannot use his position or confidential informa- tion received as a Supervisor to obtain financial gain for himself or the business that employs him. For example, the Supervisor is prohibited from using confidential information received as Supervisor to benefit his employer in bidding on or obtaining a Township contract. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Diane R. Davidson August 25, 1981 Page 2 The Act also forbids a public officical from accepting anything of value based on any understanding that the vote or official action of the public official would be influenced thereby. 65 P.S. $403(b). Since "anything of value" includes a promise of future employment the Supervisor cannot allow a promise of benefit to himself (or continuation of his employment) or the employment and /or contract with his employer to influence his votes or other official acts as Supervisor. The statute imposes certain restrictions on contracts entered into between a business connected with which a public official or his family and the public official's governmental body. Section 3(c) provides that: No public official ... or a member of his immediate family or any business in which 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 hall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded in an open and public process.... 65 P.S. §403(c). If the Supervisor, his wife, or a member of his immediate family is a director, officer or owner of more than 5% of the equity of a business seeking to contract with the Township, and the contract is valued at more than $500, it must be awarded in an open and public process including: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Howard, 79 -044. Further, the Supervisor should abstain from discussions relating to and /or voting on the award of the contract and place the reason for his abstention on the public record even assuming an open and public process is used in awarding contracts. Sowers, 80 -050. Diane R. Davidson August 25, 1981 Page 3 The restrictions of an open and public process are required if, but only if, the Supervisor is a director, officer or holder of more than 5% of the stock equity of the business seeking to contract with the Township. If the Supervisor is a employee of the firm, however, he must still refrain from voting on the award of a contract to his employer and place the reason for abstention on the public record. Abstention under such circumstances avoids the appearance of a conflict of interest prohibited by the Act. 65 P.S. §401. Knox, 81 -009. Conclusion: A Township Supervisor is a public official subject to the Ethics Act. The Supervisor cannot use his office or confidential information received as Supervisor to obtain financial benefit for himself, his immediate family or a business with which he is associated. Nor may the Supervisor accept anything of value, including a promise of future employment, for himself or his employer, based on any understanding that his official acts would be influenced thereby. If the Supervisor or a member of his immediate family is a director, officer or owner of more than 5% of the stock of a business that desires to enter into a contract valued at more than $500 with the Township the contract must be awarded in an open and public process. Such a process includes: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. The Supervisor must abstain from the vote awarding a contract to his business and must place the reason for this abstention on the public record. If the Supervisor or his immediate family are not officers, directors or 5% stockholders of the business, the open and public process restrictions are not applicable. The Supervisor, however, must still abstain from voting on the award of a contract by the Township to his employer and place the reason for the abstention on the public record. Diane R. Davidson August 25, 1981 Page 4 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 Sincerely, ndra S. hr ianson General Cou