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HomeMy WebLinkAbout87-559 KellySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 11, 1987 ADVICE OF COUNSEL Mr. Mike Kelly Allegheny Fire Systems 246 Perry Street Pittsburg, PA 15239 Re: Borough Council Member, Sub - Contractor, Company Transacting Business With Borough 87 - 559 Dear Mr. Kelly: This responds to your letter of April 27, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition upon your sub - contracting with companies that may be transacting business or seeking certain approvals or permits from the borough in which you are an official. Facts: You advise that you are currently an elected councilman in Monroeville, Pennsylvania. You are also involved in a partnership with a resident of another community. The business with which you are associated installs fire extinguishing systems in commercial and industrial buildings. You advise that on occassion a business may come before city council and request site plan review or various approvals to construct or renovate buildings in the borough. The borough has a 1975 code which requires certain fire prevention systems to be installed as a condition of the borough's approval. After approvals are obtained, the businessmen who have sought these approvals, usually secure bids to install the fire prevention systems. You anticipate that from time to time your business may be bidding on some of the projects that have received borough approval. You advise that at the time the borough council approves or disapproves the construction or renovation plans you would not be aware of who the general contractor for the builder would be. You would, however, know that there would be a need for a fire prevention system by virtue of the borough code. You advise that you may be bidding along with other bidders to a general contractor only after there was an approval of the site plan. Mr, Mike Kelly May 11, 1987 Page 2 Discussion: As < borough councilmember you =re clearly a public offica`i as that term is defined in the State Ethics Act. 65 P.S. y402. As such, your conduct must conform to the requirements of that law. Domalakes, 85 -010. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use hi public office or any confidential information receive.' through his holding public office to obtain financial in 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). Within the above provision of law, no official may use his position or confidential information obtained therein, to obtain any benefit or financial gain for a business with which he is associated. The Act defines business with which one is associated 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. Clearly, within the circumstances of the instant situation, you are associated in Allegheny Fire Systems, and therefore, could not use your public position in order to obtain any financial gain for that company. In relation to the instant situation, you have indicated that Allegheny Fire Systems will not be biddidng on any specific project or will not be seeking any particular approval from the borough. Additionally, you indicate that Allegheny Fire Systems would not be acting as a general contractor for the individual who sought the approvals from the borough, but would rather be submitting bids to a general contractor who is employed by that builder. As such, there would appear to be no direct or absolute restriction upon your reviewing, considering and voting upon plans that related to projects wherein fire systems would have to be installed. It should be noted, however, this Commission has in the past indicated that, in the event a proposal or plan should be submitted and you have a reasonable belief that your company will be bidding on the project or w i l l in fact be the sub - contractor on the project, you should abstain from participating in that particular matter. Your abstention should be publicly noted and appropriately recorded. Such a situation would develop in the event that you have, for example, an ongoing Mr. Mike Kelly May 11, 1987 Page 3 relationship with a particular builder or person that is submitting approvals before the borough council. Additionally, if you have a reasonable belief that you will be bidding on a specific project then you should similarly abstain from participating in that matter. Other than as set forth above, however, the Ethics Commission would not specifically require that you abstain in matters where you are not dealing with the builder whose plans you are reviewing or where you do not have a reasonable belief that you will be the sub - contractor. In addition to the foregoing, the Ethics Act also allows this Commission to address other areas of possible conflicts of interest. 65 P.S. §403(d). Within this particular provision of law, this Commission has addressed a number of issued wherein an offical has been called upon to act in matters where he has had a prior relationship with individuals coming before his governmental body. See Widmer, 83 -580, 87 -505. In this respect, if a builder has appeared before the borough council in order to obtain the borough's approval of a specific plan and you have participated with that particular builder in the installation of systems in his buildings, then it would be the better practice for you to abstain from participating in this particular situation as you have had a past financial relationship with that particular individual. Other then as set forth above, however, the Ethics Act would present no prohibitions upon your conduct as set forth in your letter. Conclusion: As a member of a borough council, you are clearly a public offical as that term is defined in the State Ethics Act and must conform your conduct to the requirements thereof. While the State Ethics Act would present no per se prohibitions upon your bidding on projects as a sub - contractor in relation to matters wherein the borough may hve issued approvals, you must abstain from participating in such matters if you have a reasonable belief that your company will be financially interested in the project. Additioaally, you must conform your conduct to the requirements of the State Ethics Act as further 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. Mr. Mike Kelly May 11, 1981 Page 4 Finally, if you disagree with this Advice or if you have any reason to challenge lame, you may request that the full Commission review this Advice. A personal ,p earance 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 ''.he Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sinc r s hrfJ.` .� ntino Acti General Counsel