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HomeMy WebLinkAbout87-608 GillMr. Robert L. Gill Township Manager East Pennsboro Township 98 South Enola Drive Enola, PA 17025 -2796 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 August 14, 1987 ADVICE OF COUNSEL 87 - 608 Re: Public Employee, Contracting, Planning and Zoning Commission Member Dear Mr. Gill: This responds to your letter of June 12, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether a Member of the Planning and Zoning Commission of East Pennsboro Township may, through a business with which he is associated, engage in contracting under certain circumstances with the township. Facts: Mr. Thomas Templeton is a member of the Planning and Zoning Commission which serves in an advisory capacity to the Board of Commissioners of the Township of East Pennsboro, hereinafter Township, and has through you requested advice from the State Ethics Commission. The Township is currently involved in a local, state and federal highway project to relocate Center Street in the Township. The Planning and Zoning Commission, hereinafter Commission, acts only in an advisory capacity as noted and may only make recommendations, but not final approvals, to the Board of Commissioners, hereinafter the Board. It is also understood that the Commission makes no general expenditures of funds and that the members of the Commission are not compensated. Further, the Commission does not operate as a zoning hearing board, the functions of which are performed by a separte board so designated. Mr. Robert L. Gill August 14, 1987 Page 2 Under prescribed Township guidelines, sealed technical proposals and bids were received from five selected engineering firms in the Pennsylvania area. Upon opening the sealed proposals, Benatec Associates, Inc. was the low bidder at a price of $154,984.00. A review of the price proposal, which is incorporated herein by reference, indicates that said proposal was prepared by Thomas Templeton, whose name is typewritten on the bottom of page 1 of the proposal summary. Further, Mr. Templeton is identified on pages 3 and 4 of the Benatec Associates, Inc. proposal as their Chief Civil Engineer who would function as a project supervisor for a period of forty hours at an hourly rate at $18.90 which would total of $756.00. Discussion: Initially, it is noted that under the Ethics Act, this Commission's jurisdiction is limited to rulings under the Ethics Act. Thus, in this Advice, the propriety of or answer to any questions related to the propriety of Mr. Templeton's conduct in light of any code, statute (federal or state), regulation or ordinance other than the Ethics Act cannot be addressed. In the definitional section of the Ethics Act, Section 402, "public official" is defined as follows: Section 2. Definitions. "Public official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. [ "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses.] 65 P.S. 402. However, in Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the Pennsylvania Supreme Court held the definitional phrase "public official" unconstitutional insofar as it operated to exempt appointed /non - compensated officials from Ethics Act coverage. Thus, the Court's decision had the effect of removing the appointed non - compensated exclusion from the Ethics Act. The Regulations of this Commission define "public official ", in part, as follows: Mr. Robert L. Gill August 14, 1987 Page 3 Section 1.1. Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (8) The body will be deemed to have the authority to otherwise exercise the power of the State or of a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (I1I) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. Mr. Robert L. Gill August 14, 1987 Page 4 (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. From the facts and circumstances outlined above, the Commission, as a pure advisory board, falls within the exception of the term "political subdivision" as contained in the Regulations of the Ethics Commission. The Commission does not have the powers enumerated in subsection (i)(A) above quoted. Further, the Commission does not meet the criteria of any of subsection (i)(B) with the possible exception of (i)(B)(II). Therefore, under the Ethics Act and Regulations, Mr. Templeton, as a member of the Commission, is not a "public official" based upon the facts and circumstances outlined above. Accordingly, the Ethics Act is not applicable to him and, consequently, imposes no prohibition as to the contracting activity as outlined above. However, it must be restated that the Ethics Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other statutes (federal or state), codes, ordinances, regulations, etc. Conclusion: Mr. Thomas Templeton, as a member of the Planning and Zoning Commission which serves as an advisory board to the Board of Commissioners of Pennsboro Township is not a "public official" within the Ethics Act. As such, the Ethics Act is not applicable to Mr. Templeton and, consequently, would not prohibit a firm with which he is associated from contracting with the Township. Lastly, this Advice is limited in scope to the Ethics Act and does not address the propriety of Mr. Templeton's conduct under any other statutes, codes, ordinances or regulations. Mr. Robert L. Gill August 14, 1987 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. Sincerely, Vincent J. Dopko General Counsel