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HomeMy WebLinkAbout90-538 HarrisonMr. Joseph Harrison Municipal Garage City of Allentown Allentown, PA 18101 -1699 Dear Mr. Harrison: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 11, 1990 90 -538 Re: Conflict, Public Employee, Superintendent, Contract, Former Employee. This responds to your letter of March 1, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a Municipal 'Garage Superintendent from entering into a contract for municipal services with a former employee who submitted the lowest and best cost proposal. Facts: As the superintendent of the municipal garage for the City of Allentown, you coordinate both the purchase of supplies and services for the city as well as supervise a staff of mechanics. You have recently requested proposals for mechanical services, such as oil changes, emission tests and have concluded that the lowest cost and best proposal was from a person who had been employed as a mechanic by the city within the past year. The former employee had no supervisory or purchasing responsibilities and was not required to file a Financial Interests Statement with this Commission. You conclude by requesting an advisory opinion as to whether you may award a contract to him under the Ethics Law. Discussion: As the superintendent for the municipal garage for the City of Allentown, it will be assumed for purposes of this advice that you are a "public employee" as that term is defined under the Ethics Law and hence, subject to the provisions of that law. Mr. Joseph Harrison Page 2 Section 3(a) of the Ethics Law provides: Section 3. Restrictgd Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "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 has a financial interest. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or Mr. Joseph Harrison Page 3 accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(a) of the Ethics Law, quoted above, restricts the use of the authority of office for a private pecuniary benefit as to a public official /employee, a member of his immediate family or business with which he or a member of his immediate family is associated. In this case, you seek to utilize the mechanical services of a former employee who has offered a bid which you state is the lowest and best proposal. Section 3(a) of the Ethics Law would not prohibit you from accepting that bid for mechanical services provided that the former employee is not a member of your immediate family and provided that the former employee does not have a business with which you are associated as that term is defined under the Ethics Law. Subject to the above qualification, Section 3(a) of the Ethics Law would not prohibit you from awarding this contract to the former mechanical employee. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Conclusion: As a superintendent for the municipal garage for the City of Allentown it is assumed that you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you from awarding a contract for mechanical services to a former employee who is not a member your immediate family or does not have a business with which you are associated as that term is defined under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Mr. Joseph Harrison 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, teouvC Vincent . Dopko, Chief Counsel