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HomeMy WebLinkAbout83-581 RohanaMr. Peter J. Rohana, Jr., Esquire 1501 Baltimore Pike Springfield, Pennsylvania 19064 Dear Mr. Rohana: Mating Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 29, 1983 ADVICE OF COUNSEL RE: Plumbing Inspector, Contracting, Section 3(h)(1) This responds to your letter of July 14, 1983, in which you, as Solicitor, requested advice from the State Ethics Commission. 83 -581 Issue: You ask whether a plumbing inspector of a first -class township may contract with the township. Facts: You are solicitor for the Township of Ridley, a First -Class Township, herein after the Township, in Delaware County. The Township Plumbing Inspector, hereinafter the Inspector, is also a general contractor doing business in the Township. The Township owns a municipal garage which is in need of substantial renovations. The Township solicited bids to perform these renovations. The Inspector, in his capacity as general contractor, submitted a sealed bid in response to this request and upon opening these bids was found to be the lowest responsible bidder at a cost of $71,000. The next highest bid was $94,000. You indicate that it is in the Township's best interest to accept the lowest bid presented by the Inspector, but you question whether or not the provisions of Section 3(c) and 3(h)(1) of the Ethics Act may be reconciled in order to allow the Township to accept such a bid. You indicate that any work which the Inspector would perform as the general contractor performing the renovations to the municipal garage would require plumbing inspections which would certainly be done by another plumber and not the Inspector himself. Discussion: As a plumbing inspector, this individual is clearly a "public employee" within the purview of the Ethics Act. Consequently his conduct must conform to the requirements of the Ethics Act. As you have correctly noted the most important provisions of the Ethics Act be reviewed in this matter are Section 3(c) and 3(h)(1) which are repeated below as follows: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Peter J. Rohana, Jr., Esquire July 29, 1983 Page 2 (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). (h)(1) Any individual who holds an appointive office in any political subdivision shall not have an interest in any contract or construction in which that political subdivision shall enter or have an interest. 65 P.S. 403(h)(1). While Section 3(h)(1) would seem to indicate that any individual who holds an appointive office in any political subdivision shall not have "any contract" with the political sudivision that he serves, there is some question as to whether this Section as opposed to Section 3(c) would govern the situation because the Inspector would more properly be considered a "public employee." In such a case, Section 3(c) of the Ethics Act would be most applicable to the situation described above and would allow the contract between the Inspector and the Township to be made so long as the open and public process -- in this case the bid process -- has been observed. Even if Section 3(h)(1) were more specific and applicable to the situation of the plumbing Inspector described above, this Commission has held that questions arising under Section 3(h)(1) should be addressed insofar as possible in light of the safe- guards contained in Section 3(c). This Commission in its opinion in Nanovic, 80 -041 found that it was reasonable to address the restrictions of Section 3(h)(1) using the power contained in Section 3(d) to establish a parallel between the provisions of Section 3(c) and Section 3(h)(1) and to impose those safe - guards contained in Section 3(c) to a case where an appointed member of a planing commission sought to contract with the Township. In that case, the Commission concluded that the planning commission member, if he followed the restrictions contained in Section 3(c) of the Ethics Act, could enter into contracts with the Township. Thus, in the present case, even if Section 3(h)(1) were to be read to be applicable to the Inspector, a contract could be made between the Township and the Inspector so long as the requirements of Section 3(c) of the Ethics Act were met. Mr. Peter J. Rohana, Jr., Esquire July 29, 1983 Page 3 Finally, the Commission has concluded that a bid process is not necessarily synonomous with the requirements of the "open and pubic process" set forth in Section 3(c) of the Ethics Act. This Commission has concluded that the open and public process requirements of Section 3(c) are met if there is: 1. prior public notice of the contract possibility; 2. sufficient time for a reasonable and prudent competitor to be able to prepare and submit a proposal; 3. public disclosure of all proposals received and considered; and 4. public disclosure of the contract awarded or offer accepted. See Howard, 79 -044 and Fields, 82 -006. In the situation in which you described the sealed bid process and the request for bids prior to that, if coupled with subsequent disclosure of all bids received and contracts awarded would comply with the requirements of Section 3(c) of the Ethics Act. Conclusion: As a "public employee" and under the circumstances described above, the requirements of Section 3(c) would be met and, therefore, the Township and the Inspector could enter into the contract you described without violation of the Ethics Act. Even if Section 3(h)(1) of the Ethics Act were applicable to this situation, these provisions are to be interpreted in light of the requirements of Section 3(c) in accordance with prior Commission precedent and, therefore, as long as the requirements of Section 3(c) have been met this contract would not violate the requirements of the Ethics Act. 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. Mr. Peter J. Rohana, Jr., Esquire July 29, 1983 Page 4 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. SSC /rdp Sincerely, I � Sandra S. Christianson General Counsel