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HomeMy WebLinkAbout82-599 PurselCharles B. Pursel, Esquire Derr, Pusel & Luchas 238 Market Street P.O. Box 539 Bloomsburg, PA 17815 RE: Contracting, School Bus Service Dear Mr. Pursel: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 16, 1982 ADVICE OF COUNSEL 82 - 599 This responds to your letter of October 4, 1982, in which you requested advice from the State Ethics Commission. Issue: You inquire as to whether there are any prohibitions or requirements under the Ethics Act for partnership of a school director in the contracting process with the school district to provide school bus service. Facts: You represent, as a private attorney, an individual who is also a school director in a local school district. This individual, hereinafter referred to as the school director, along with his brother are partners in a loosely organized partnership that operates several business enterprises. One of these enterprises owns and furnishes busing services to the local school district on which the school director serves. The partnership owns the buses and his brother is the contractor of record. However, it is clear that the school director would be financially affected, beneficially or adversely, by the school bus contracts awarded by the school district. Although the district pays the bus contractors in accor- dance with the state formula for such payments, the school director has abstained from all voting on busing matters and has not participated in any of the district's negotiations involving busing matters or contracts. The busing contracts between contractors and the school district involve bus contractors with whom the district has dealt, year after year, including the father of the school director and his partner- brother. In fact, the death of the school director's father is what brought the school director into the business - partnership and the busing- contract picture in general. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles B. Pursel, Esquire December 16, 1982 Page 2 The school district does not undertake any formal bidding process to award the regular bus runs. However, it is generally known that such contracts are available and all contractors are presumably capable of submit- ting a proposal to the school district to increase their routes or to secure the contracts for routes which are awarded annually. In relation to bus - routes for extra - curriculum activities, the school district solicits sealed bids and all contractors are given the opportunity to submit proposals to secure these additional routes. The low bid is accepted under this procedure. Discussion: As an elected public official, the school director is a "public official" within the meaning of that term as defined in the Ethics Act. As such the conduct of the school district must conform to the requirements of the Ethics Act. Initially, review of the fact situation as you have presented as supplemented by your letter of November 12, 1982, indicates that compe- titors of the school director's partnership are aware of the availability of contracts for providing busing service to the school district. In this respect, they are capable of presenting proposals to the school district to secure such contracts. This procedure is sufficient to comply with the requirements of Section 3(c) of the Ethics Act. See 65 P.S. 403(c). The Ethics Act also requires that the school director abstain from all decisions relating to the award of the bus contract and negotiations on these contracts. The reasons for his abstention should be placed upon the public record. After the award of such contracts, assuming that the payment of bills to the contractors in question is not subject to dispute and amounts to a ministerial act in strict conformance with the contract negotiated, without the participation or vote of the school director, may be undertakened with the participation of the school director. You indicate that such abstention is currently being undertaken by the school director. Conclusion: The school director does not violate any legal requirements imposed by the Ethics Act so long as his conduct continues to conform to the requirements expressed above. 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. Charles B. Pursel, Esquire December 16, 1982 Page 3 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp San u ra S. Christ General Counsel