HomeMy WebLinkAbout82-603 HenchAllen E. Hench, Esquire
227 Walnut Street
Newport, PA 17074
RE: Councilman, Laborer, Contract
Dear Mr. Hench:
„, ,
4 444, 114
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
December 21, 1982
ADVICE OF COUNSEL
82 -603
This responds to your letter of November 23, 1982, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether a borough councilman can be employed as a laborer by
the borough.
Facts: You represent, as solicitor, Liverpool Borough, hereinafter the
Borough, located in Perry County. A Borough Councilman wishes to be
considered for employment as a laborer by the Borough to perform some work on
the Borough building. This employment will be charged to the Borough at an
hourly rate. It is anticipated that the amount to be charged to the Borough
for this labor would be less than $500.
Discussion: As an elected Borough Councilman, your client, is a public
official within the definition of the Ethics Act. Therefore, this Councilman
must conform his conduct to the requirements of the Ethics Act. The most
pertinent requirement of the Ethics Act is found in Section 3(c) of the Ethics
Act which states as follows:
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of 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 shall
enter into any contract valued at $500 or more with a
governmental body unless the contract has been awarded
through an open and public process, including prior public
notice and subsequent public disclosure of all proposals
considered and contracts awarded. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Allen E. Hench, Esquire
December 21, 1982
Page 2
This Section is applicable to contracts made between the Borough and the
Councilman in excess of $500. Upon the facts, as you have presented them,
this Section of the law would not be applicable to the contract of question
given the fact that the contract is not anticipated to exceed $500.
Therefore, there need not be an open and public process in this selection of
the Borough Councilman as the laborer to perform this work for the Borough.
Of course, the Councilman in question should refrain from voting on the
question of his employment of a laborer to perform this work. If this
contract is anticipated to exceed $500 the public official involved must fully
comply with the provisions of Section 3(c) in relation to the open and public
process requirements.
Conclusion: In the factual situation, as you have presented it, Section 3(c)
of the Ethics Act would not require that an open and public process be
undertaken before a Borough Councilman could be hired by the Borough.
However, should the anticipated cost of this contract exceed $500, the
requirements of Section 3(c) of the Ethics Act must be met. In addition, the
Councilman in question should not participate in the discussions or votes
leading up to the employment of a laborer to perform these services for the
Borough.
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 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
Sincerely,
to, 414
'Sandra S. Christianson
General Counsel