HomeMy WebLinkAbout83-615 GaydosGeorge M. Gaydos, Jr., President
Borough of Bell Acres
RD #3, Box 386
Sewickley, PA 15143
RE: Contracting, Grates
Dear Mr. Gaydos:
Mailing Address
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 22, 1983
ADVICE OF COUNSEL
'83 -615
This responds to your letter of November 2, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether you may contract with the Borough on which you serve
and under what circumstances you may do so consistently with the provisions of
the Ethics Act.
Facts: You currently serve as President of the Council in the Borough of Bell
Acres, hereinafter the Borough. You have been approached by the Chairman of
the Public Works Committee of the Borough to provide services to the Borough
in the form of the construction of grates for the Road Department as needed by
the Road Department. You note that the Public Works Committee has advertised
for bids for the construction of these grates but has received no bidders.
You indicate that you have the equipment and materials needed to
construct the grates and because no bidders have responded to the Public Works
Committee advertisement you wish to be advised whether, under the State Ethics
Act, you may undertake this contract and project. You note that the cost to
the Borough for construction of the grates, if such a contract is made, would
be a great savings to the taxpayers.
Discussion: As an elected member of the Borough Council you are a "public
official" as that term is defined in the Ethics Act. See 65 P.S. 402. As
such, your conduct must conform to the requirements of the Ethics Act. We
note intially, that you have been provided with direction as to the course of
conduct required under the Ethics Act in similar situations. See Gaydos, No.
131 -C. In that Order we indicated that the requirements of Section 3(c) of
the Ethics Act as set forth below must be met when you would seek to contract
with the Borough. Specifically, Section 3(c) of the Ethics Act provides
that:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
George M. Gaydos, Jr., President
November 22, 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).
As was stated in that Order, it is clear that Section 3(c) of the Ethics
Act would apply and require that you may contract with your governmental body,
here the Borough, only when this contract is awarded after an open and public
process has been undertaken. This open and public process includes prior
public notice of the availability of the contract /work and subsequent public
disclosure of all prosposals considered and contracts awarded. In the facts,
as you have now presented them, it is clear that the Public Works Committee
has solicited proposals and advertised for bidders in an effort to alert
potential competitors of the possibility that the grate- contract /work was
available. This action suffices to meet the open and public process
requirements of Section 3(c) of the Ethics Act. Having received no bidders,
following this process, the Borough may award the contract to you so long as
the process of the solicitation is made part of the record and there is
subsequent public dislcosure that no proposals were received and that the
contract is being awarded to the only bidder or person offering to undertake
this work /project, yourself.
We should note, however, that in the process of awarding this contract,
you have been previously advised and we reiterate here, the requirements of
Section 3(a) of the Ethics Act must be met. Specifically, Section 3(a) of the
Ethics Act provides as follows:
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Under the provisions of Section 3(a) of the Ethics Act you may not
participate in discussions or official actions of the Borough which would lead
up to or constitute the award of the contract to yourself. This abstention is
also required pursuant to the general Purpose of the State Ethics Act as
expressed in Section 1 of the Act, 65 P.S. 401.
George M. Gaydos, Jr., President
November 22, 1983
Page 3
Conclusion: The requirements of Section 3(c) of the Ethics Act must be met
before a contract can be awarded or made between the Borough and yourself.
However, such an open and public process has been undertaken and given the
advertisements noted above and on the facts set forth above, the contract may
be awarded to you assuming that there is subsequent pub'iic disclosure of the
fact that no bids were received and that the contract has been awarded to you.
Additionally, in the process of advertising tor, selecting, and awarding this
contract, you must abstain as set forth above. The reasons for this
abstention should be placed on the public record.
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.
SSC /rdp
Sincerely,
andra S. Chri tianson
General Coun el