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HomeMy WebLinkAbout88-663 WilliamsonRobert G. Williamson, 190 Washington Street P.O. Box 423 East Stroudsburg, PA STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1988 Esquire 18301 -0423 88 -66' : Conflict of Interest, Township Supervisor, Contracti1N the Township Dear ° ' „. Williamson: .i3 responds to your letter of November 4, 1988, i. which you req tsted advice from the State Ethics Commission. Issue: "'' the State Ethics Act presents any prohibition „ restrictions upon a second class township supervisor rom contractin with the township. Facts: Yon have telephonically advised that you aro the solicitor for a township and that you are asking on behalf of a township supervisor whether he could bid on a township pro jec' -. Specifically you request advice as to whether the second c1as townshi, supervisor may bid on a project in his township ii tine nnocess is done through an open and public bidding in accordance with t' .6 Second Class Township Code. Discussion: As a township supervisor, the individual is a public official as th' t term is defined under the Ethics Act. 65 P. S402; 51 Pa. Code S1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Secti:dn 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his Robert G. Williamson, Esquire December 8, 1988 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In applying the above provision of law, the Commission has Determined that if a particular statutory enactment prohibits an officials receipt of a particular benefit, than that officials receipt of such a prohibited benefit in and through his public office would also be a use of office in violation of the Ethics Act. The Commission has been called upon, on various occasions, to determine whether a specific benefit or financial gain is prohibited by law. See Allan, Advice 86 -518. In order to determine whether a particular benefit or gain is strictly prohibited by law, the provision of the enabling legislation of the governmental body in question must be reviewed. In the Listant matter, the Second Class Township Code provides as follows: "(f) Except as herein provided, no township official, either elected or appointed, who knows, or who by the exercise of reasonable diligence, could know, shall be interested to any appreciable degree, either directly or indirectly, in any contract for the sale or furnishing of any supplies or materials for the use of the township, or for any work to be done for such township involving the expenditure by the township of more than Robert G. Williamson, Esquire December 8, 1988 Page 3 three hundred dollars ($300) in any year, but this limitation shall not apply to cases where such officer, or appointee of the township, is an employe of the person, firm or corporation to which the money is to be paid in a capacity with no possible influence on the transaction, and in which he cannot be possibly benefited thereby, either financially or otherwise: Provided, however, That in the case of a supervisor, if he knows that he is within the exception just mentioned, he shall so inform the supervisors and shall refrain from voting on the expenditures, or any ordinance relating thereto, and shall in no manner participate therein: Provided, further, That any such official or appointee who shall knowingly violate this provision shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the township, ouster from office, and shall be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500): Provided, That in the case of the purchase of material for the construction, reconstruction, maintenance and improvement of roads and bridges, the contract, which shall be in writing, and shall be let only on standard specifications of the Department of Transportation, and materials so purchased shall only be used in accordance with specification so of said department." 53 P.S. S65802(f). The Second Class Township Code does not appear to contain any exception to the above provision that is applicable in the instant situation. Although you have not set forth a detailed factual background, it appears that the township supervisor individually is attempting to contract with the township. Assuming that the contracting would be over the threshold amount set forth in the Code, then such contracting would be prohibited. This Commission has in the past determined that where a public official individually or through a business with which he is associated would be prohibited from receiving compensation for -providing services or transacting business with his governmental body then such would be prohibited under Section 3(a) of the Ethics Act. Weaver, Opinion 85 - 014. Therefore, based upon 17.e prior rulings of this Commission, the township supervisor woi 1d Robert G. Williamson, Esquire December 8, 1388 Page 4 appear to be prohibited from receiving any funds from the township for services rendered or in relation to any other business transaction exceeding $300.00. Thus, since the financial gain appears to be prohibited by law under the applicable Code, then the receipt of this financial gain in and through the public position would also appear to be prohibited by Sect_cn 3(a) of the State Ethics Act. See Fyda, Order 438 -R. In addition to the foregoing, the State Ethics Act provides as follows: Section 3(c) of the Ethics Act provides: (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 cor.:.ienced within EC days cf making of the contract. 65 P.S. 403(c). In relation to the above provision of law, the State Ethics Commission has generally determined that this provision is a procedure to be used when a public official or employee contracts with his own governmental body in excess of $500. Bryan, Opinion 80 -014; Lynch, Opinion 79 -047. The Commission, however, has also determined that the above provision of law is not a general authorization for a public official to contract with his own governmental body where such is otherwise prohibited by law. The above provision of law clearly is intended to be a procedure to be utilized where contracting is otherwise allowed by law. For example, if a particular business transaction was prohibited under Section 3(a) of the State Ethics Act, then this particular section would also prohibit a public official from being interested in a contract. Robert G. Williamson, Esquire December 8, 1988 Page 5 Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an additional procedure, the open and public process, must be used in all situations where a public official is otherwise appropriately contracting with his own governmental body in excess of $500. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. See, Cantor, 82 -004. Thus, in the event that contracting would be allowed, the above process must be employed. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a township supervisor, the individual is a public official subject to the provisions of the State Ethics Act. Based upon the information provided herein and if the contract exceeded $300.00, the Ethics Act would prohibit the township supervisor from receiving any financial gain that is strictly prohibited by law. A member of the Township Board of Supervisors who receives such a compensation for himself or a business with which he is associated would be receiving a financial gain that is strictly prohibited by law. Such would be received in and through public office and would not be in accord with the State Ethics Act. Parenthetically, in the event that there had been no such prohibition upon the receipt of this compensation, then the Ethics Act, generally, would not have been precluded in and of itself this contracting possibility. However, the township supervisor could not participate in any actions relating to the award of the contract by the township and all contracting must be must be accomplished through an open and public process as set forth above. Robert G. Williamson, Esquire December 8, 1988 Page 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 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 52.12. Sincerely, 1) Vincent J. Dopko, QTA,