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HomeMy WebLinkAbout83-580 WidmerMr. Joseph Widmer P.O. Box 153 Beaver Falls, PA 15010 RE: County Commissioner; Contracting; Private Business Dear Mr. Widmer: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 28, 1983 ADVICE OF COUNSEL 83 -580 This responds to your letter of June 29, 1983, in which you requested advice from the State Ethics Commission. Issue: You request advice as to the extent and restrictions that would be placed upon you and your engineering firm by the State Ethics Act if you are successful in your bid for public office. Facts: You are a candidate for the position of Beaver County Commissioner, and you state that you whole- heartedly support the goals of the State Ethics Act. As a private businessman, you have decided that if you are successful in your bid for public office, your firm, Widmer Engineer Incorporated, hereinafter, Widmer Engineering, will accept no engineering business whatsoever from Beaver County, nor will it accept work through state or federal programs administered by the County, such as the HUD Community Development Block Grant Program. You do, however, have some specific questions pertaining to both business and political matters involving your responsibilities to both the public and your engineering firm, and you have therefore, requested advice from the State Ethics Commission. Discussion: If you were successful in your bid for elected public office, there is no doubt that you will be a "public official" within the meaning of the Ethics Act, 65 P.S. 401 et seq. Accordingly, your conduct as a County Commissioner would be governed by the Ethics Act. However, while the Act contains some restrictions against contracts between a public official and the governmental body with which he is or would be associated, in your case, the County, the Act does not totally prohibit a person from engaging in outside employment or other ventures on his own time. Essentially, the Ethics Act precludes engaging in ventures or activities which would constitute a conflict of interest with your public employment. The Ethics Commission has defined State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Joseph Widmer July 28, 1983 Page 2 "conflict of interest" as existing where an individual represents two or more persons whose interest are adverse to each other. See Alfano, 80 -007. While the situation you present does not constitute a per se conf ict of interest, you should be aware of some of the restrictions that apply to you under the Ethics Act, whether or not you intend your firm to contract with the County. Section 3(a) of the Ethics Act provides that no public official should use his public office or any confidential information obtained through holding public office to acquire financial gain for himself, his immediate family, or a business with which he is associated. 65 P.S. 463(a). "Business" with which you are "associated" is defined as: "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. 403(a). We assume you stand in one of these relations vis -a -vis Widmer Engineering and under this definition, you would clearly be "associated" with Widmer Engineering. Thus, you may not use your position as a County Commissioner to secure financial gain for your business, Widmer Engineering, nor may you pass any confidential information acquired through being a County Commissioner to Widmer Engineering. Section 3(b) of the Act states. that no person shall give to a public official /employee, nor shall any public official /employee accept, any thing of value based on any understanding that the official's vote, action, or judgment would be influenced thereby. See 65 P.S. 403(b). Future employment, income, etc., is a thing of value and thus, you may not allow your official actions or judgments with regard to relations with Widmer Engineering, to be affected by your association with Widmer Engineering. Similarly, the Ethics Act would apply to Widmer Engineering as a "person" as that terrn is defined in the Act to include a corporation, and would preclude your company, under Section 3(b) of the Ethics Act, from offering any thing of value to a public official or employee based on the understanding that the official's conduct must be influenced thereby. Further, Section 3(c) of the Act states that no public official, member of his immediate family or any business in which the person or member of his immediate family is a officer, director or owner of greater than 5% of the equity at fair market value may contract in an amount in excess of $500 with the governmental body with which the official is associated unless the contract has been awarded through an open and public process. See Howard, 79 -044. Again we assume you hold one of these positions vis -a -vis Widmer Mr. Joseph Widmer July 28, 1983 Page 3 Engineering. Previous opinions of the Commission have held that the term "governmental body" in Section 3(c) refers to the governmental body with which the public official is "associated." Bryan, 80 -014 and Lynch, 79 -047. Therefore, the "open and public process" limitation of Section 3(c) applies if, and when, you and your corporation attempt to contract with the County. It must be emphasized that Section 3(c) presents no absolute prohibition against Widmer Engineering contracting with the County. Section 3(c) requires, however, that any contract valued in excess of $500 be awarded only after an open and public process has been undertaken. 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. If these standards are complied with and competitors have a reasonable time within which to submit their proposals, your Corporation, Widmer Engineering, could even contract with the County for a contract in excess of $500 should the opportunity arise. Also, if Widmer Engineering contracts with the County in accordance with Section 1 of the Ethics Act, in order to avoid any appearance of a conflict of interest, you, as a County Commissioner, must abstain from any action, recommendation or other process of consideration of the award of the contract to which Widmer Engineering might be a party. Finally, specific questions with which you present to the Commission are treated below: 1. You ask whether completion by Widmer Engineering of projects awarded prior to your assuming office, if elected, would constitute a violation of state law or rulings. In answer to your question, a review of the Commission precedent reveals no opinion stating that conflict of interest arises in the fulfillment of a contract awarded prior to your assuming office. As a County Commissioner, you should, however, abstain from participation in any discussions or votes on any matter which may come before the County Commissioners regarding such contracts, for example, votes and /or discussions on whether to pay disrupted bills, or to inspect, accept, and approve work. 2. You ask whether your firm's continued work for municipalities within Beaver County will constitute any violation of state law or rulings if you are elected. In this regard, the Commission precedent reveal no opinion concluding that a conflict of interest exists because municipalities other than the County itself do not constitute "governmental bodies" with which you Mr. Joseph Widmer July 28, 1983 Page 4 are "associatd." Although you must, of course, not use your public office or any confidential information obtained through holding public office with the County to obtain work with other municipalities, even those geographically located within the County are not prohibited or restricted by the open and public requirements of Section 3(c) of the Ethics Act. 3. Finally, you ask whether, because the County Commissioners have u voice in the allocation of state or federal funds administered by the County, such as the Community Development Block Grant Program, your participation and decisions on the allocation of these funds will constitute any violation of state law or rulings, Assuming, as you state in your request, that Widmer Engineering will accept no work through state or federal programs administered by the County, such as the HUD Development Block Grant Program there would be no conflict of interest involved where your firm has no interest in the allocation of such funds. However, if your firm does bid on contracts administered under the CBDG Program, or you have a reasonable belief that your firm will bid on such contracts, you should abstain from participation, decisions on the allocations of these funds made by the County. The reasons for your abstention must be made part of the public record, and the public must have sufficient opportunity to comment on the allocation process and be aware of the possibility Widmer Engineering may secure such funds or work. See Toohey, 83 -003; Kane, 83 -004; and Coploff, 83 -005. Although you have stated that your firm will not accept any engineering business from Beaver County, you should be aware, as stated above, that the Ethics Act does not prohibit your firm contracting with the County where the requirements of Section 3(c) of the Ethics Act are followed. Conclusion: As a public official, you must avoid conflicts and the appearance of any conflict of interest by complying with the requirements of Sections 3(a) and (b) of the Ethics Act and not using confidential information gained through public office to obtain financial gain, and not accepting or offering any thing of value for favorable official action. Although you have stated you intent not to do so, your firm, Widmer Engineering, may, even if you are elected, contract with Beaver County, so long as you adhere to the open and public process requirements of Section 3(c). With regard to your specific questions, answers are provided above. However, if you remain unsure as to the limits of your conduct, please feel free to contact us with further specific questions. Mr. Joseph Widmer July 28, 1983 Page 5 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. 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 This letter is a public record and will be made available as such. Sincerely, andra S. General Counsel ristianson