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HomeMy WebLinkAbout81-643 WilsonMr. William L. Wilson 628 West Rittenhouse Street Philadelphia, PA 19144 Dear Mr. Wilson: Mailing Address- STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 16, 1981 ADVICE OF COUNSEL State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 81 -643 RE: Section 3(c), Govervor's Architect /Engineer Selection Committee This responds to your letter of October 19, 1981 in which you, as a member of the Governor's Architect/ Engineer Selection Committee, requested an opinion from the State Ethics Commission. Issue: You requested advice as to whether the Ethics Act precludes you, as a member of the Governor's Architect/ Engineer Selection Committee, from entering into contracts with the Department of General Services. Facts: You presently serve as a member of the Governor's Architect /Engineer Selection Committee. This Committee is an independent advisory board created under Act 145 of July 1975, P.L. 75 to assist the Department of General Services in the selection and appointment of professional architects and engineers. This Selection Committee (hereinafter the "Committee ") was established pursuant to the powers of the Department of General Services set forth in the Administrative Code, 71 P.S. 631.1. As a member of the Committee, you are a gubernatorial appointee and serve a two -year term. Each member is reim- bursed for reasonable travel and other expenses incurred Mr. William L. Wilson November 16, 1981 Page 2 incident to their work on the Committee and also receives a per diem allowance as determined by the Executive Board. The Committee meets at the request of the Department of General Services to assist in selecting architects and engineers with which to contract for non - transportation Commonwealth projects. The Commonwealth gives public notice of opportunities to contract for upcoming projects. It then reviews the requests for consideration and selects three of the interested applicants as recommendations to the Department of General Services. The Department then selects its contractor from those applicants selected by the Committee. In addition to its other responsibilities the Committee sets the fee to be paid for pre - planning, design and contract administration of any project. You are also president of Synterra Limited, a pri- vate landscape, architecture and development planning enterprise. Synterra is interested in performing work for the Department of General Services while you are still a member of the Selection Committee. Synterra Limited provides professional services in the areas of design and development planning to clients in the real estate industry. Synterra has acquired a highly regarded reputation for acurate job cost estimating, familiarity with emerging trends in the construction industry and directing service to minority contractors in the areas of recordkeeping, accounting and bid processing. The Secretary of General Services has proposed that a contract be made with Synterra Limited that would assist minority contractors in upgrading their ability to parti- cipate in the contract bidding process. The services to be rendered under such contract would be assisting minority contractors in accounting procedures, bid preparation pro- cedures and other efforts aimed at preparing such contractors for full participation in the State contracting procedure. Discussion: The Ethics Act of. 1978, 65 P.S. Section 401 et seq., defines public official as including any ... appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision Mr. William L. Wilson November 16, 1981 Page 3 thereof, provided that it shall not include members of advisory boards that have no authority... to otherwise exercise the power of the State or any political subdivision thereof. In making formal recommendations to the Department of General Services the Committee exercises the power of the State through the Department of General Services. You are an appointed official in the Executive Branch (Department of General Services, the Governor's Architec- tural and Engineering Selection Committee) and this Board is empowered to place advertisements for bids on projects, rank, and sumbit to the Secretary of General Services a bidder to be selected, and to set the fee to be paid for pre - planning design and contract administration of any project. Thus, as a committee member, you are a public official for the purposes of the Ethics Act. The governmental body you serve is the Department of General Services. The Ethics Act does not absolutely forbid public servants from doing business with governmental bodies, even with those with whom the public servants associate. A public official may contract with a governmental body if he or she honors the restrictions imposed by the Act. The Act in Section 3( provides that no public official shall use his position or confidential information received as a public official to obtain financial gain for himself or a business with which he is associated. 65 P.S. Section 403(a). Thus, you cannot use your position on the Committee or confidential information received as a Committee member to obtain a contract between the Department of General Services and Synterra Limited. Similarly, you should not participate in deliberations, discussions or votes leading to a recommendation for the contract. Furthermore, Section 3(b) of the Ethics Act, 65 P.S. 403(b) states that no one shall offer, nor a public offi- cial accept, anything of value based on any understanding that his official actions will be influenced thereby. You may not accept anything of value, including a contract, Mr. William L. Wilson November 16, 1981 Page 4 based on any such understanding. Finally, Section 3(c) of the Ethics Act, P.S. 403(c) also states that no public official, or a member of his immediate family, or any business in which the person or his immediate family is a director, officer or owner 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 is awarded in an open and public process. Assuming that you or your family enjoy one of these relationships with Synterra, you may not become vendor for a contract between the Department of General Services and Synterra unless the contract is let in an open and public process that allows for: (1) prior public notice; (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Howard, 79 -044. The Commission has normally applied the restrictions of Section 3(c) to any contract between the official who enjoys such a status and the governmental body with which the official is associated. Use of the open and public process avoids even the appearance of impropriety. These requirements would be met if, for example, a request for proposals was issued by the Department of General Services and other businesses capable of providing service similar to that which is proposed to be rendered by Synterra would have an opportunity to know of the possible contract, to present a proposal and to be considered by the Depart- ment for award of the contract. In addition, these entities who respond to the request for proposals or to solicitations form the Department of General Services should be noti- filed of the award of any contract. Conclusion: A member of the Governor's Architect /Engineer Selection Committee may contract, as president of an architectural enterprise, with the Department of General Services if the member does not use his official position or confidential information received as a Selection Committee Mr. William L. Wilson November 16, 1981 Page 5 member to obtain financial gain for himself or a business with which he is associated. The member may not accept anything of value, including an opportunity to bid on a contract, or the promise of future employment based on any understanding that his official actions would be influenced thereby. If the proposed contract is valued at more than $500, and the member enjoys that status, vis -a -vis Synterra, described in Section 3(c) of the Ethics Act, the contract must be awarded in an open and public process as discussed above. These restrictions apply so as to avoid even the appearance of a conflict of interest. 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 /lma cc: Secretary Walter Baran 5480 Sincerely, Safidra S'. — ristianson General Counsel