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HomeMy WebLinkAbout86-547 WilsonMs. Sheila C. Wilson R.D. #2, Box 191 Troy, PA 16947 Re: Public Employee, Contracting Dear Ms. Wilson: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 April 30, 1986 ADVICE OF COUNSEL 86 - 547 This responds to your letter of April 1, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether as an employee of the Pennsylvania Department of Transportation your husband may engage in contracting under certain circumstances with the Pennsylvania Department of Transportation. Facts: You are a Clerk Typist II, serving with the Pennsylvania Department of Transportation, hereinafter Pennfot, and as such requested advice from the State Ethics Commission. In your position with the Pennsylvania Department of Transportation you are employed in one of the Department's maintenance districts. You advise that your husband has expressed an interest in bidding on a contract that would he awarded by the Pennsylvania Department of Transportation in that district. You have advised your supervisor in relation to your hpshand's anticipated activity, and you now have requested the advice of the State Ethics Commission as to whether any prohibition would he placed upon you or your husband in the instant situation. As part of this request, we have reviewed your job description and we note that generally you perform all of the functions and duties of a Clerk Typist II as set forth in the position specification, (0022). In addition to the specific duties outlined in that particular specification, you have advised that you are involved in the district's bid process and, as such, you pay all bills involving field limited purchase orders as well as service purchase contracts. You also type and mail out all bids awarded and processed for payment. You input transactions and are involved in the fuel consumption report and monthly inventory reports. Ms. Sheila C. Wilson April 30, 1986 Page 2 Discussion: For the purose of this advice, we will assume that you are a public employee within the definition of that term as set forth in the State Ethics Act. See 65 §402. As such, you are subject to provisions of the Ethics Act and must conform your conduct to the requirements of the Act. See 65 P.S. 401 et seq. While the Ethics Act contains some restrictions regarding contracts between the business with which a "public official" or "public employee" i s associated and the governmental body with which the official or employee is associated, the Ethics Act does not totally prohibit a public official or employee from engaging i n business activities or contracting, i n general, with the body the official or employee serves. Section 3(a) of the Ethics Act does provide that no public official or public employee shall use his public office or any confidential information obtained through holding of a public office or position to acquire financial gain for himself, his immediate family, or a business with which he is associated. See 65 P.S. 403(a). A "business with which he is associated" is defined in the Ethics Act as follows: "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. The information provided in the instant situation clearly shows that your spouse or his business is seeking to contract with PennDot. As such, then you would be "associated" with this business and would be required to observe the prohibitions set forth in Section 3(a) of the Ethics Act. This means that you could not use your position as a clerk typist involved in the bid process to secure financial gain for your spouse or his business and could not use any confidential information acquired through the holding of public office or employment to the benefit of that business. Thus, primarily, you should not participate in any decisions, discussions, or recommendations that would lead PennDot to award the contract in question to your husband's business. Section 3(b) of the Ethics Act also states that no person shall give to a public official or employee nor shall any public official or employee accept anything of value based on the understanding that the official's vote, action, or judgment would be influenced thereby. See 65 P.S. 403(b). You must be cognizant of this requirement and observe this provision of the Ethics Act. Reference to this Section is made not to indicate that any violation or potential violation exists but merely to provide a complete review of the Sections of the Ethics Act which may be generally applicable to these ci rcumstances. Ms. Sheila C. Wilson April 30, 1986 Page 3 Section 3(c) of the State Ethics Act further provides as follows: Section 3. Restricted activities. (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). The Act further provides as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. As is clear from the foregoing, your husband is a member of your immediate family and, thus, any contract entered into between your governmental body and your husband must be done through an open and public process if that contract is in excess of $500. See Howard, 79 -044. The contracting provisions of the State Ethics Act would not prevent your husband from obtaining a contract with a governmental body other than the one by which you are employed. In the instant situation, your husband is seeking to contract with one of the Pennsylvania Department of Transportation Districts. This is the governmental body by which you are employed and, therefore, the open and public process requirements of the State Ethics Act would be applicable in the instant situation. See Bryan, 80 -014; Lynch, 79 -047. The Act as set forth above, however, does not prevent any absolute prohibition on your husband's attempt to obtain a contract with the Department of Transportation. It should be emphasized, that even though Section 3(c) of the Ethics Act presents no absolute prohibition to the contract between PennDot and your husband's business certain requirements as to the open an public process must be met. In its Opinions in Howard, 79 -044 and Fields, 82 -006, the Commission stated that an open and public process is met by applying the following standards: Ms. Sheila C. Wilson April 30, 1986 Page 4 1. prior public notice of the employment or contracting possibility; 2. sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; 3. public disclosure of all applications or proposals considered; and 4. public disclosure of the contract awarded or offered and accepted. See also Cantor, 82 -004. In determining whether the requirements of Section 3(c) of the Ethics Act had been met, the Commission has adopted a "reasonableness test" which means that reasonable and prudent competitors of your husband's business should be provided a sufficient time within which to submit their proposals and, of course, should have had prior notice of the opportunity to secure such a contract or employment. Since you indicate that PennDot will or advertised for and /or has requested and received proposals or bids in relation to this contract, it is clear that the open and public process requirements of the Ethics Act have been or will be satisfied as long as conditions 3 and 4 cited above are also met. Conclusion: Under the facts as have been set forth above, we will assume that you are a public employee as that term is defined in the Ethics Act. In light of the fact that a member of your immediate family is attempting to enter into a contract with your current governmental body, then Sections 3(a) and 3(c) of the State Ethics Act are applicable. These sections of the law mandate that: 1. (4) should not have anything to do with the (5) decisions, or votes, discussions regarding the awarding of this contract or work; 2. an open and public process, as described above, must be undertaken prior to any such award of a contract by the (6) to this business; 3. no confidential information acquired or received through the holding of your public position be used to obtain advantages or financial gain for this business; and 4. the requirements of Section 3(b) of the Ethics Act must be observed, in that nothing of value can be offered, accepted or solicited in exchange for or to influence official judgment. Ms. Sheila C. Wilson April 30, 1986 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. 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. Si nc el y, - // o n J on ino Gen - .1 Counsel