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HomeMy WebLinkAbout83-626 GovachiniDennis Govachini, Esquire 311 Masonic Building Ebensburg, PA 15931 Dear Mr. Govachini: Matting Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 12, 1983 ADVICE OF COUNSEL RE: Cambria Township, Section 3(c), Immediate Family 83 -626 This responds to your letter of November 30, 1983, in which you, as Solicitor for the Township of Cambria, requested advice from the State Ethics Commission. Issue: You ask whether a supervisor is required to abstain from acting on a particular bid or award of a contract under certain circumstances. Facts: You serve as Solicitor for the Township of Cambria, hereinafter the Township. The Township have advertised and provided specifications for the purchase of certain trucks -- two diesel - powered trucks and two gasoline- powered trucks. Following this solicitation, bids were received and one of the bidders is a certain garage hereinafter, the Garage. One of the employees or salesman of the Garage is also the nephew of one of the supervisors hereinafter, the Supervisor within the Township. You note that the nephew in question is not a member of the household of the Supervisor and does is not living with the.Supervisor and, in fact, is married, lives separately from the Supervisor, and is not, we will also assume, dependent upon the Supervisor as that term is commonly understood. Discussion: The Township Supervisor in question as an elected official, is considered a "public official" as that term is defined in the Ethics Act, and as such, his conduct must conform to the requirements of the State Ethics Act. One section of the Ethics Act to be reviewed is that section of the Act dealing with contracting as follows: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Dennis Govachini, Esquire December 12, 1983 Page 2 Section 3. Restricted act ;vities. (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 awf.rded 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 is clear from this Section, that when a public official or a member of his immediate family or a business in which the official or a member of his immediate family may be a director, officer, owner or holde° t stock as described above, seeks to contract with the governmental body where the public official serves, the contract must be awarded only after an open and public process. Thus, it is clear, that even if the Supervisor or a member of his immediate family stood in the status as outlined in Section 3(c) of the Ethics Act, vis-a-vis the Garage, there would be no prohibition against the contract itself. However, you also ask whether or not the Supervisor may participate in the Township's decision to award the contract. The answer to this question involves a review of Section 3(a) of the Ethics Act which provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use iris 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). Section 3(a) of the Ethics Act regulates the conduct of a public official and a "business with which he is associated" as defined in the Ethics Act as follows: Section 2. Definitions. "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. 402. Dennis Govachini, Esquire December 12, 1983 Page 3 It is clear that the Supervisor, himself, is not involved in the garage, as such, nor is the Garage a "business with which he (the Supervisor) is associated. The remaining question is whether or not the Garage is a business with which a member of the Supervisor's "immediate family" is "associated." The definition of "immediate family" as set forth in the Ethics Act includes a spouse residing in the person's household or a minor dependent child. The regulations of the Ethics Commission further define the term "minor dependent child" as follows: Person under 18 years of age who lived in the household of the person - filer - required to file a Financial Interest Statement during the reporting period whom the filer claimed as a dependent on the filer's federal income tax return for the equivalent reporting period. 51 Pa. Code 1.1. As can be seen from this definition and the facts which you have presented, the nephew of the Supervisor is not a member of the Supervisor's "immediate family" nor is the nephew in any way to be considered a "minor dependent child" of the Supervisor. Accordingly, there is no prohibition under Section 3(a) of the Ethics Act against the Supervisor for participating in the Township's decision to award or to refrain from awarding the contract in question to the Garage where the Supervisor's nephew is an employee - salesman. Conclusion: The requirements of Section 3(c) of the Ethics Act are not applicable to this situation. There is no prohibition under the facts as described above under Section 3(a) of the Ethics Act or otherwise under Section 1 of the Ethics Act against the Supervisor in question participating in the decision of the Township with respect to the award of this contract to the Garage. 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. Dennis Govachini, Esquire December 12, 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, Sandra S. Christianson General Counsel