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HomeMy WebLinkAbout87-528 TompkinsMr. Edwin W. Tompkins, III, Esquire P.O. Box 31 Emporium, PA 15834. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 27, 1987 ADVICE OF COUNSEL 87 - 528 Re: Conflict of Interests, Township Supervisor Contracting With County Regarding Township Project Dear Mr. Tompkins: This responds to your letter of March 9, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon a township supervisor's potential contracting with the county to construct a sewer project in the township where he is an official. Facts: As solicitor for Grove Township, you have requested the advice, of the State Ethics Commission in relation to Robert Garman. Mr. Garman currently serves as a member of the grove township board of supervisors. You have advised that Cameron County has recently applied for funds under a community development block grant program. The purpose of these funds will be for the construction of a sewer project in the Crestline Development which is located in Grove Township. Approval for the allocation of the aforementioned grant funds was received from the Pennsylvania Department of Community Affairs. Actual construction will begin on this project as soon as possible. Cameron County, through the county commissioners, has taken full responsibility for . implementing the construction project. That is, the county commissioners will be handling the receipt of bids and the award of the construction project for the Crestline sewer prject. Upon completion of construction, the ownership of the system will be vested in Grove Township and the supervisors will thereafter be responsible operating and maintaining the system. The cost attendant, thereto, will be born by the residents of Crestline Development. Robert Garman is also involved in the construction business. Accordingly, he is desirous of submitting a bid to the county commissioners regarding the construction work for the Crestline sewage project. To date, the subject of construction costs has never been discussed by the township board of supervisors. Neither Mr. Garman nor the other two supervisors will be involved in the selection process in relation to the construction of tIe sewage project. You have requested the advice of the State Ethics Commission regarding whether the State Ethics Act presents any porhibitions upon Mr. Garman's contemplated activities in relation to the above. Mr. Edwin W. Tompkins, III, Esquire March 27, 1987 Page 2 Discussion: As a township supervisor in a township of the second class, Mr. Garman is clearly a public official as that term is defined in the State Ethics Act. 65 P.S §402. As such, his conduct must conform to the requirements of that law. Sowers, 80 -050; Welz, 86 -001. The instant situation and the question that you have presented, must be reviewed within the restricted provisions of the State Ethics Act. Generally, the act in part 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 member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). The above provision of law has been interpreted on a number of occasions by `he State Ethics Commission. Generally, within the purview of this particular provision of the law, no public official may use his public position in order to obtain a financial gain for himself or a business with he i; associated. He may not use confidential information obtained in his public position for similar purposes. While you have not indicated whether Mr. Garman's construction business is that of a sole proprietorship or a corporation, the business entity with which he is involved clearly would benefit from the construction project. As such, he cannot, as a township supervisor, participate to any degree in the activities surrounding the award of this contract. In the instant situation, however, it appears as though the township board of supervisors will play absolutely no role whatsoever in the award of this contract. The contract bids will be requested and received by the county board of commissioners. The contract will thereafter be awarded to the lowest bidder by that governmental body. In this respect, the township supervisors do not appear to have any active rule in the county's decisions. As such, Mr. Garman would not be in a position.to be using his position as a township supervisor to benefit his own company. In the event, however, that the county seeks the recommendations or assistance of the township board of supervisors in relation to the project, then Mr. Garman must abstain from participating in that matter. In addition to the foregoing, the State Ethics Act also authorizes this commission to address other areas of conflicts of interest. 65 P.S. §403(c). Such conflicts are determined through a review of the intent and scope of the State Ethics Act as set forth in the preamble thereto. 65 P.S. §401. Generally, the Ethics Act was promulgated in order to insure the public that the financial interests of their officials do not conflict with the public trust. If such a situation should develop in the future, wherein Mr. Garman would be called upon to serve one or more interests that are adverse, he should either abstain from participating therein or seek the futher advice of this commission. For example, you have noted that the ownership of the sewage Mr. Edwin W. Tompkins, III, Esquire March 27, 1987 Page 3 project would vest in the township supervisors upon the completion of construction. If the township board of supervisors are required to take some action in relation to that project which would somehow effect Mr. Garman's private interest, then he should not participate therein. For example, if the sewage project is in need of repairs, and Mr. Garman's company is being contemplated as the entity to conduct such repairs, then additional considerations under the State Ethics Act will arise and appropriate advice should be obtained. Additionally, if Mr. Garman is the successful bidder, and at some future point in time, one or more of the members of the county board of commissioners who have awarded that contract to his company, must obtain or seek some benefit from the township board of supervisors, similar restrictions may apply. See Welz, 86 -001. In addition to the foregoing, the Ethics Act also 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 above provision of law has been interpreted by this commission to require the utilization of an open and public process when a public official contracts with his own governmental body. See Bryan, 80 -014; Lynch, 79 -047. In the instant situation, Mr. Garman's company will be contracting with the county and not with the township board of supervisors. Therefore, the open and public process requirements of Section 3(c) would not be applicable thereto. Conclusion: The State Ethics Act presents no per se prohibitions upon Mr. Garman's contemplated activities, as a public official, he must comply with the requirements of the State Ethics Act in relation to his attempt to contract with the county. In the event that additional advice is necessary such may be obtained from the State Ethics Commission. Mr. Edwin W. Tompkins, III, Esquire March 27, 1987 Page 4 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 ncerel ohn J ontino Acting General Counsel