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HomeMy WebLinkAbout88-618 StathasIsabell Stathas 525 Penn Ayr Road Camp Hill, PA 17011 Dear Ms. Stathas: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 1, 1988 88 -618 Re: Conflict of Interest, Township Commissioner, Repair of Township Ambulance; Son's Repair Business This responds to your letter of June 27, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions upon a Commissioner of a First Class Township regarding an Ambulance which was purchased on bid by the Township vis -a -vis the possible future repair of vehicle windows when the township commissioner's son and son -in -law have a window repair /replacement business. Facts: You state that you are the Commissioner in Hampden Township which recently purchased a new 1988 ambulance in the amount of $75,790 from Swab Wagon, Inc. which was the sole bidder. After advising that you inspected and took a test ride in a similar Swab Wagon, you state that a discussion came up regarding window repairs and that you mentioned that both your son -in -law and son are in the windshield repair business. There after, you advised that the individual from Swab suggested that your son and son -in -law should contact the service department. You then advise that you conveyed this information to your son who said that he had contacted Swab in the past and would try to do so again, but to date has not set up such an appointment. After noting that your son and son -in -law have no connection with the Township, that they do not live there and that they have not in the past repaired or replaced any windows for the township, you request advice as to whether your actions implicate the Ethics Act when you state that your son and son -in -law have never tried to get the Township as an account and that they will not be repairing or replacing ambulance windows. Isabell Stathas August 1, 1988 Page 2 Discussion: As a commissioner for Hampden Township, you are a public official as that term is defined under the Ethics ACt. 65 P.S. Section 402; 51 Pa. Code §1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. The Act does, however, provide 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). Within the above provision of law, no public official may use his position or any confidential information obtained therein in order to obtain a financial gain for himself or a member of his immediate family or 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. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yacobet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use public office to secure any financial gain for himself or for business with he is associated. See Domalakes, Opinion 85 -010. In the instant matter, it appears that the Township put out bids for an ambulance and that the successful bidder was Swab Wagon, Inc. In that instance you were simply exercising public office to put out an item for bids and award a contract to the Isabell Stathas August 1, 1988 Page 3 sole bidder; Section 3(a) of the Ethics Act would not be implicated in that situation since it does not appear that you are associated with Swab Wagon, Inc. Turning to the matter of your suggesting the repair business of your son and son -in -law regarding possible future windshield repairs as to the ambulance, it appears that any repairs or service would be done by Swab Wagon, Inc. but not your son and son -in -law. Additionally, you have stated that your son and son -in -law in the past have not repaired or replaced any windows for the Township and that they will not in the future be repairing or replacing any windows for the ambulance. Under these facts and circumstances, Section 3(a) of the Ethics Act would not be implicated because it does not appear that there is any use of office which would result in a financial gain to you, your son or a business with which you are associated with. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Commissioner for Hampden Township, you are a public official subject to the provisions of the State Ethics Act. Section 3(a) of the Ethics Act is not implicated in a situation where the township purchased a new ambulance on bids from a company with which you are not associated; likewise, Section 3(a) of the Ethics Act would not be implicated regarding a windshield repair business that is run by your son and son -in- law when those individuals have not done any repairs and have indicated they will not do any repairs in the future as to ambulance windows. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as Isabell Stathas August 1, 1988 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. Sincerely, Vincent J. Dopko, General Counsel