Loading...
HomeMy WebLinkAbout82-545 GaffneyMr. John F. Gaffney Timoney, Knox, Hasson & Weand 12 East Butler Avenue P.O. Box 119 Ambler, Pennsylvania 19002 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 25, 1982 ADVICE OF COUNSEL 82 -545 RE: Public Official - Borough Ambler -, Councilman - Private Contract with Borough's Contractor Dear Mr. Gaffney: This responds to your letter of February 17, 1982 in which you, as Solicitor for the Borough of Ambler, requested an opinion from the State Ethics Commission. Issue: May a Borough Councilman, who is also the President and primary stockholder of a home oil delivery corporation, provide that service to a residence occupied by the wife of a corporation President and receive payment from the corpo- ration, when the Borough in which the Councilman serves has already entered into a sewage plant construction contract with the same corporation? Facts: Ambler Borough has hired a corporate contractor (hereinafter, plant contractor) to construct a large -scale sewage treatment plant. The plant contractor receives progress payments throughout its course of performance under the contract. Members of the Borough Council will vote on the final payment when the plant contractors completes the project. Council members will also vote on whether or not to continue the contract, should any problem justifying termination for cause arise. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. John F. Gaffney May 25, 1982 Page 2 An Ambler Borough Councilman is also President and primary stockholder of a corportion engaged in the delivery of oil and gas, and in the sales and service of heating equipment. An employee of the plant contractor has asked the Councilman to repair and subsequently deliver home heating oil to a residence occupied by the wife of the plant contractor's corporate President. The plant contractor will accept the billing for the services. The corporation of which the Councilman is President and primary stockholder, would provide the service and the fuel oil at a rate equal to that charged to other customers. Discussion: In his capacity as Ambler Borough Councilman, the President and primary stockholder of the heating fuel sales and service corporation is a public official subject to the Ethics Act, 65 P.S. 401 et seq. Pursuant to Section 3 of the Act, he may not use his office as a Borough Council- man to obtain work, including the contract to deliver home heating oil. Similarly, the plant contractor may not attempt to influence the corporate President's vote as a Council member, in connection with the public sewage plant contract, by promising the Council member future employment. 65 P.S. 403(a), (b) . However, the Ethics Act was not designed to preclude public officials from engaging in business with the public in general. Sowers, 80 -050. Furthermore, a private contract between the C lean and the plant contractor to deliver home heating oil would be independent of and distinct from the public contract between the Borough and the plant contractor. The private contract would not be subject to review, approval, etc. by the Councilman as a public official nor by the Borough Council itself. Conclusion: As a public official, the Councilman's conduct, even as a private businessman, must conform to the restric- tions delineated in Section 3 of the Ethics Act and discussed above. Therefore, as discussed above, the Borough Councilman must not: 1. use his public office position to obtain employ- ment for the corporation in which he is President and primary stockholder; or 2. use confidential information gained in his official capacity to secure such employment; Mr. John F. Gaffney May 25, 1982 Page 3 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, andra istianson General Co•nsel