HomeMy WebLinkAbout86-604 EberlyMs. Tita Eberly
143 West Main Street
Mechanicsburg, PA 17055
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
September 19, 1986
ADVICE OF COUNSEL
86 - 604
Re: Borough Councilperson, Purchase of Borough Property
Dear Ms. Eberly:
This responds to your letter „of September 3, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether the spouse of a borough councilperson may purchase a piece of
property that is being sold by the borough.
Facts: You have advised that you are currently serving as a borough
councilperson in Mechanicsburg, Pennsylvania. The borough is interested in
selling a parcel of property that it owns. Your husband, who is not
associated with the borough, is interested in placing a bid on this property.
Sealed kids are to be received by the borough. You have advised that you have
already informed the members of the borough council at a meeting on September
2, 1986, that your h'isband may intend to hid on the property. This disclosure
was made during a public meeting of the borough council. You have, in
addition to that disclosure, requested the advice of the State Ethics
Commission in relation to this matter.
Discussion: There is no doubt that as a member of a borough council, you are
a public official as that term is defined in the State Ethics Act. 65 P.S.
§402. As such, your conduct must conform to the requirements of that law.
See, Domalakes, 85 -010. Generally, the State Ethics Act provides as follows:
Section 3. Restricted activities.
(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
memher of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Ms. Tita Eberly
September 19, 1986
Page 2
Within the above provision of law, no public official may use their position
in order to obtain a financial gain for themselves or for a member of their
immediate family. No public official may use confidential information for
similar purposes. The Act defines member of one's immediate family as
follows:
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
Your spouse is clearly a member of your immediate family within the above
definition and, as such, you may not use your public position or any
confidential information obtained in that position in order to obtain a
financial gain for your husband. As such, and within the above provision of
law, you may not participate in the council's actions regarding the sale of
this property. This would include participating in any decision regarding how
much the council will accept for such property, or the terms and conditions
regarding the sale of this property. You should abstain from fixing
specifications if such is to be done regarding the sale of this property. You
must also abstain from participating in reviewing the bids and deciding which
bid will be accepted.
In addition to the foregoing, you may not use any confidential
information obtained by the borough in order to aid your husband in submitting
his bid. For example, if the borough council has obtained an estimated value
of the property or if the borough council has already decided that a minimum
bid must be received in order for the sale to be consumated, you may not
inform your husband as to the borough's decisions in this matter if you have
been privy to them. If this information is confidential in nature and if this
information is only within the purview of the officials of the borough, then
you would be in violation of the State Ethics Act if you were to use this
information in aid of your husband's bid.
The Ethics Act, however, does not place any per se prohibition upon your
husband's submission of a sealed bid. The Ethics Act, in addition to all of
the foregoing, also provides as follows:
Ms. Tita Eberly
September 19, 1986
Page 3
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).
If a contract will be entered into between your husband and the borough,
then the contract must be awarded through an open and public process. From
the information that you have provided, it appears as though the process
required, under the Ethics Act, is being followed. Specifically, you have
indicated that the borough has requested, publicly, that bids be submitted for
this property. Such has been done through an open and public process and has
been accomplished in a sufficient amount of time in order to allow members of
the general public ample opportunity to submit their proposals. You have also
advised that the bids will be opened and discussed and a final bid accepted by
the borough council. As long as the bids received, considered and the one
finally accepted are publicly announced, the provisions of the above section
of the Ethics Act will have been met. You, of course, must continue to
abstain from all of the borough's actions in this matter. Such abstention
should be publicly noted and recorded.
Conclusion: The State Ethics Act places no per se prohibition upon the
purchase of property by an individual whose spouse is a member of the
governmental body selling such property. As a public official, your conduct
must conform to the requirements of the law as set forth above.
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.
Ms. Tita Eberly
September 19, 1986
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.
Si ncer
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Gen .1 Counsel