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HomeMy WebLinkAbout83-549 SchimaneckMailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 24, 1983 ADVICE OF COUNSEL Mr. Anthony P. Schimaneck Morgan, Hallgren, Crosswell & Kane, P.C. P.O. Box 4686 Lancaster, Pennsylvania 17604 -4686 RE: Plumber, Authority Member; Contracting, Inspecting Dear Mr. Schimaneck: 83 -549 This responds to your letter of April 4, 1983, in which you as solicitor for Penn Township and the Northwestern Lancaster County Authority, requested advice from the State Ethics Commission. Issue: You ask whether an individual who is a plumber by profession, and who is being considered for appointment to the Authority may, if appointed, enter into contracts with the Township and /or the Authority for various services. Facts: An individual who has been proposed for appointment to the Authority is a plumber by profession. You state that it would be of benefit to the Authority to have a plumber as a member, but you are concerned about the propriety of possible future contracts between the individual and the Authority and the Township, as well as the ethics of having the Authority member's work inspected, if required by the Township and /or the Authority. Discussion: Non - compensated, appointed officials such as authority board members have been generally excluded from the definition of "public official" under the Ethics Act (65 P.S. 402) until the Supreme Court's ruling in Snider v. State Ethics Commission, Pa. , 436 A.2d 593 (1981) cast doubt upon that exclusion. While the Commission has not finally ruled upon the impact of this decision and has not held non - compensated members of authorities to be "public officials ", we will provide our response assuming that this response is requested merely for guidance and that authority members are not clearly covered by the Ethics Act. Should, however, the position of Authority member be a compensated position, this Advice is clearly binding rather than simply advisory. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Anthony P. Schimaneck May 24, 1983 Page 2 The Ethics Act requires that any "public official" who contracts with the "governmental body" with which hQ is associated may do so only after an open and public process as required by Section 3(c) of the Ethics Act, 65 P.S. 403(c). As you recognize, Section 3(c) regulates the awarding of contracts in excess of $500. The governing body with which the member- plumber would be "associated ", in this case, the Authority, should insure that if the plumber and Authority contract in amounts in excess of $500, competitors for possible contracts are given notice and an opportunity to compete or apply for the contract. See Howard, 79 -004; Cantor, 82 -004; and Field, 82 -006. Thus, if the Authority member were to seek to contract with the Authority, there must be: 1. Prior public notice of the contract; 2. sufficient time for reasonable and prudent competitors to prepare and present bids; 3. public disclosure of all bids considered; and 4. public disclosure of the contract awarded or offered in accepted. You have also expressed a concern that Section 3(h)(1) may - provide some problems with regard to the awarding of a contract to the appointed Authority member, but under Nanovic, 89 -041, the Commission has reviewed such contracts between appointed officials and political subdivisions by applying restrictions similar to those contained in Section 3(c), as described above. While the Commission believes the Authority is the plumber's governmental body, you have referred to the Township several times as a separate entity, and in this concept you are correct. In this regard, because the Township is a separate legal entity from the Authority, contracting with the Township would present no problems under the Ethics Act or Section 3(h)(1) as long as the cautions and an open and public process as applied in Nanovic are observed. Additionally, the Ethics Act requires that no public official may use his public offic or any confidential information received through the holding of public office to obtain financial gain for himself other than compensation provided by law. 65 P.S. 403(a). Also, the Act prohibits a public official from accepting any thing of value, including the promise of future employment for himself based on the understanding that the official's conduct would be influenced thereby. See 65 P.S. 403(b). Thus, in order to comply with Section 3(a) and (b) of the Ethics Act and to avoid any appearance of any conflict of interests as required by Section 1 of the Ethics Act, the Authority member should abstain from voting on any decisions relating to the selection for a plumbing contractor. The reasons for this abstention should be placed on the public record and the Authority member should not participate in any matter in discussions or decisions relating to plumbing contracting with the Authority or the Township. Mr. Anthony P. Schimaneck May 24, 1983 Page 3 You also raise the issue of inspection of the Authority member's work by the Authority or the Township. In light of the above discussion, and in light of the Commission's decision in Sowers, 80 -050, the Authority member would have to abstain from any action, be it inspection or otherwise, of his own work or that of a business with which he is associated as well as with a person /business where he can reasonably expect to obtain or has sought plumbing work. As long as he abstains, no ethical violations would arise. Conclusion: Even if the Authority member is covered by the Ethics Act, if he conforms his conduct to the above considerations, he may contract with both the Authority and the Township in his professional capacity as plumber. Inspections, votes, and abstentions must be made in accordance with this discussion. 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, Sandra S. Chris anson General Couns