HomeMy WebLinkAbout83-554 RoweMr. Edward T. Rowe, Jr.
2799 Leechburg Road
Lower Burrell, PA 15068
RE: Contracts; Bidding; Section 3(e)
Dear Mr. Rowe:
Madhng Address
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: 1717) 783 -1610
May 27, 1983
ADVICE OF COUNSEL
83 -554
This re3ponds to your letter of April 14, 1983, in which you, as
Solicitor for the Township of Upper Burrell, requested advice from the State
Ethics Commission. -
Issue: You ask whether it is appropriate for the Township to grant a contract
to a part -time Township employee where that contract was advertised in
accordance with law.
Facts: Mr. Merle Clements is employed by the Township of Upper Burrell in a
part -time capacity during the winter months. He assists in snow removal work,
occasionally operating snow plows and salt trucks. He is paid for this work
by the Township at an hourly rate. Recently, the Township of Upper Burrell
requested bids for a hauling contract with a value in excess of $500. The
contract was advertised in accordance with law, and the low bidder was
part -time Township employee Merle Clements.
Although the contract was advertised in accordance with law, you are
unsure as to whether Mr. Clements may be awarded the contract because on
PennDot's contractor's forms, there is a "contractor certification"
requirement. Under Section (b) of those statements to be certified is a
clause that none of the owners are employees of the municipality awarding the
contract. You are concerned that this clause may preclude awarding the
contract to Mr. Clements, but you believe that because Mr. Clements is not a
public employee for purposes of the Ethics Act, his low bid should be accepted
and the contract awarded to him.
Discussion: Initially, the Ethics Commission notes that as a statutory
entity, its jurisdiction and its powers are strictly limited to the authority
granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret
and /or enforce the provisions of other codes, for example, PennDot
regulations, and this Advice should not be construed as clearance to act under
Commonwealth laws other than the Ethics Act.
State Ethics Commission • 308 Finance Building C. Harrisburg, Pennsylvania
Mr. Edward T. Rowe, Jr.
May 27, 1983
Page 2
Assuming without deciding that Mr. Clements is a "public employee" in his
part -time capacity with the Township, we address the question you pose on the
assumption that Mr. Clements is within the coverage of the Ethics Act.
Whether or not Mr. Clements is a public employee, however, you should be aware
of the provisions of Section 3(c) of the Ethics Act, which provide in part:
(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).
Under the provisions of this Section it is clear that even public
employee may secure a contract valued in excess of $500 with the governmental
body with which he is associated (here the Township) if it is obtained after
an open and public process. You indicate that the Township has indeed engaged_
in an open and public bid process and that Mr. Clements is the lowest bidder.
Therefore, whether or not he is a public employee, there would be no violation
of Section 3(c) of the Ethics Act.
Again, the Commission cautions you that it has no authority to interpret
Pennfot regulations, but in light of the above discussion, it is clear that
there would be no violation of the Ethics Act if the contract is awarded to
the lowest bidder through an open and public process, whether or not that
bidder also happens to be a public employee for purpose of application of the
Ethics Act.
Conclusion: So long as the requirements of Section 3(c) of the Ethics Act are
met in the process of the awarding of the hauling contract, there is no per
se, under the Act, prohibition against Mr. Clements being awarded the contract
whether or not he is a public employee under said Act.
Mr. Edward T. Rowe, Jr.
May 27, 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
ndra S. hp,stianson
General Couoiel