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HomeMy WebLinkAbout83-542 CambestMr. John F. Cambest Conway, Meyer and Cambest 612 Grant Building Pittsburgh, PA 15219 RE: City Councilman, 3(c) Violations Dear Mr. Cambest: Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 April 18, 1983 ADVICE OF COUNSEL This responds to your letter of Janaury 24, 1983, in which you, as Solicitor for the City of McKeesport, requested advice from the State Ethics Commission. Issue: You ask whether the McKeesport City Council would violate the Ethics Act by paying a bill submitted by a certain plumbing company in which one of the councilmen is a partner. Facts: You are the solicitor for the City of McKeesport. It has been brought to your attention that the City Administrator engaged the plumbing company of John Haughey and Sons to replace certain relief valves on boilers at the McKeesport Office Building, and that this was understand, an emergency procedure. Jame Haughey, who is a Councilman of the City, is a partner in the company, but it is your understanding that he was not contacted nor did he do any of the actual plumbing work. John Haughey and Sons has forwarded several bills for the work to the City, and the City Council would like to pay the bills, but is concerned with the propriety of such payment under the Ethics Act. These bills were for $1100.00 for valves at City Hall on October 12, 1982 and for $93.34 for valves at City Hall on November 8, 1983. Discussion: Members of the City Council are "public officials" subject to the Ethics Act, 65 P.S. 401 et seq. As public officials, they must comply with the restrictions set forth in Section 3 of the Ethics Act and must avoid even the appearance of impropriety as required by Section 1 of the Ethics Act. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 83 -542 Mr. John F. Cambest April 18, 1983 Page 2 Initially, you si °.eeld be aware oi' some of the restrictions applicable to City Councilmen and other publictempleyeee or officials under the Act. Section 3(a) of the Ethics Act, 65 P.S. 403(a), prohibits any public official or employee from using his public officer or employment, or confidential information received through public office or employment to receive financial gain for !.imself, his family, or a business with which re is associated. The Ethics Act defines "business with which he is associated" as follows: "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. n addition, Section 3(b), 65 P.S. 403(b), precludes a person from offering a public employee any thing of value, including a promise of future employment, based on the understanding that his official actions would be influenced thereby. These restrictions are cited not to indicate any violations of the Ethics Act in the situation you describe, but to serve as a point of reference and guide for conduct in general. Section 3(c) of the Ethics Act, 65 P.S. 403(c), provides that no public official, member of his immediate family or any business in which the person or a member of his immediate family is an officer, director or owner of greater than 5% of the equity at fair market value may contract with a governmental body unless the contract, valued at more than $500, is awarded through an open and public process. See Howard, 79 -044. It should be noted that this requirement applies to the Councilman only where his firm is attempting to contract with the City Council, that is, the governmental body with which James Haughey is associated. It must be emphasized that there is no prohibition on Mr. Haughey's firm's contracting with the governmental body with which he is associated (the City) provided that any contract valued in excess of $500 is awarded in an open and public process. In its opinion in Howard, 79 -044, the Commission stated that an open and public process must meet the following criteria: (1) prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Mr. John F. Cambest April 18, 1983 Page 3 It should also be noted that in order for Mr. Haughey to avoid even the appearance of a conflict of int4rest as required by the Act, he must abstain from participation in any matters which may come before the City Council regarding the plumbing firm, where the question concerns the contract award or discretionary matters. He should disclose the reasons for his abstention, and those reasons should be made a part of the record. With regard to the issue at hand, that is, whether the City Council may- pay the plumbing bills incurred as a result of Mr. Haughey's firm performing emergency work, it should be noted at the outset that Section 3(c) does not allow emergency exception to its open and public process requirements. An attempt should have been made to contact other firms which might be interested in the job in order to avoid the appearance of impropriety and also to get the best price for the job. The City should consider an annual maintenance - emergency contract that would be awarded on a bid proposal basis so that such situations do not arise in the future. See Steff, 80 -535. However, in these limited circumstances, because the job was an emergency procedure and because James Haughey was not contacted in the matter, the Ethics Commission sees no impropriety in the payment of the bills, even though they are well in excess of the $500 limitation under the Act. This is not to say, however, that John Haughey and Sons may engage in such contracting with the City of McKeesport in the future. Hence forth, the open and public process requirements as discussed above must be met and James Haughey must meet the guidelines set forth above as to abstention when the plumbing firm in which he is a partner may contract with the City of McKeesport for work valued in excess of $500. Conclusion: In the limited circumstances of this particular situation, the McKeesport City Council may pay emergency plumbing bills in excess of $500 even though they were not incurred as the result of an open and public process. Also, if James Haughey conforms his conduct to the guidelines set forth above, that is, compliance with Sections 3(a), (b) and (c), and abstention from participation in City Council proceedings involving the plumbing firm with which he is associated, that firm, John Haughey and Sons, may contract with the City of McKeesport in excess of $500. Mr. John F. Cambest April 18, 1983 Page 4 Pursuant to Section 7(9)(i), 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, i vv/ Sandra S. Chr tianson. CEneral Counsel