HomeMy WebLinkAbout83-528 DomalakesMr. Paul Domalakes
Rubright, Domalakes,
Troy & Miller
Law Building, P.O. Box 9
Frackville, PA 179?1 -0009
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
April 5, 1983
ADVICE OF COUNSEL
RE: Sewer Authority Member, Bookkeeping, Additional Salary
Dear Mr. Domalakes:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
83 -528
This responds to your letter of February 16, 1983, in which you, as
attorney for and representative of the Sewer Authority of Schuylkill County,
requested advice from the State Ethics Commission.
Issue: You ask whether one of the Sewer Authority Members may perform
bookkeeping work for the Authority at a salary additional to his regular
salary.
Facts: The Sewer Authority of Schuylkill County has five paid members
appointed by the Borough Council. Due to a staff changeover, there is a
significant amount of bookkeeping work that needs to be done for the Authority
in the form of posting bills and completing some of the ledgers. One of the
Authority member's has excellent accounting experience and abilities and the
Authority proposes to have this member complete the needed work and to pay him
a salary in addition to his regular salary. The Authority member would not be
doing the auditing for the Authority. He would not be serving in the function
of an auditor nor would he be asked to perform or approve any audit. You
would like to know whether this practice would be prohibited under the State
Ethics Act.
Dicussion: The Ethics Act, 65 P.S. 401 et. seq., regulates the conduct of
public officials, st'ch as the paid, appointed Sewer Authority member, to
assure the public of the independence and impartiality of its officers.
Section 3(a) of the Act, 65 P.S. 403(a), prohibits a public official from
using his public office or confidential information gained by virtue of his
holding public office to obtain financial gain other than compensation
provided by law for himself or a member of his immediate family. Thus, of
course, the member could not use confidential information to secure this job.
The purpose of the Act is also to strengthen public confidence in government
Mr. Paul Domalakes
April 5, 1983
Page 2
by avoiding even the appearance of a conflict of interest. See Section 1 of
the Ethics Act, 65 P.S. 401. In this regard, if any vote were to be taken on
whether or not to award any kind of a contract to perform this bookkeeping
work it would be necessary for that member being considered for such
employment to abstain from all discussions, including voting on the decision
or hiring anyone for this job, in order to comply with the Ethics Act.
Section 3 (c) of the Ethics Act, furthermore, states:
(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 ana 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)
This Section is applicable to contracts made between the Sewer Authority
-- the governmental body with which the members are associated and the Sewer
Authority member. See Bryan, 80 -014 and Lench, 79 -047. However, this Section
of the law would not be applicable to the contract in question if the contract
does not exceed $500. In the event that the contract does exceed $500,
compliance with the requirements of an open and public process in the
selection of the Sewer Authority member to perform the bookkeeping services
for the Sewer Authority would require:
1) Prior public notice of the availability of this contract /job
opportunity;
2) public disclosure of all applications considered;
3) public disclosure of the selection made.
As set forth in Howard, 79 -044, competitors for this contract /job must have a
reasonable time /opportunity within which to submit applications.
Conclusion: The Sewer Authority member in question should not participate in
the discussions or votes leading up to the employment of that member or any
other person as bookkeeper for the Sewer Authority. Also, should the
anticipated cost of the contract exceed $500, the requirements of Section 3(c)
of the Ethics Act must be met. The member may not use confidential
information to secure this role /job.
Mr. Paul Domalakes
April 5, 1983
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 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.
CW /rdp
Sincerely,
andra S. Chr stianson
General Counsel