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HomeMy WebLinkAbout90-543 VogrinMr. Joseph E. Vogrin, III Law Offices Scott, Vogrin & Riester 1320 Frick Building Pittsburgh, PA 15219 Dear Mr. Vogrin: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE. (717) 783 -1610 ADVICE OF COUNSEL May 15, 1990 90 -543 Re: Conflict, Public Official /Employee, Contracting, Township Commissioner, Shop Owner, Sales to the Township. This responds to your letters of February 27 and March 14, 1990 in which you requested advice from the State Ethics Commission. Issue: Whether a commissioner of a first class township or a business with which he is associated under the Public Official and Employee Ethics Law may engage in contracting under certain circumstances with the township. Facts: On behalf of Thomas C. Sunday (Sunday) who is a Commissioner in Shaler Township in Allegheny County, you seek a ruling from this Commission regarding the following situation. Sunday who was elected township Commissioner on November 8, 1989 and took office on January 2, 1990 has been appointed to the finance committee in Shaler Township which has oversite responsibility for reviewing the "bills payable list" prior to board approval. Sunday is the sole propriety of the Sunday's Sport Shop which is located within the township and which from to time sells items to the township to service its recreation program. The township manager estimates that on an annual basis the total amount of goods purchased from Sunday's Sport Shop does not exceed $900 which involves approximately twenty transactions on average per year, period. Sunday has declined to review or approve any invoices for his company in this capacity as Commissioner or finance committee person. Further, on January 9, 1990, Sunday filed a written statement of conflict with the township secretary as well as read a statement at the public meeting prior to any action being taken on the bills. Thereafter Sunday abstained from voting on the "bills payable list" citing the potential conflict. Shaler Township is desirous of continuing to make small transactions with the Sunday Sport Shop since it is the only store in town and is conveniently located. You assert that the small Mr. Joseph E. Vogrin Page 4 Finally, contracting restrictions as to public officials/ employees are provided in Section 3(f) of the Ethics Law as follows: Section 3. Restricted activities. (f) No public official or public employee or his spouse or 'child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although Sunday would not be prohibited under Section 3(a) of the Ethics Law from engaging in business activities as to his sport shop, he could not perform his private business using governmental facilities or personnel. In particular Sunday could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out private business activities. In addition, he could not during government working hours, solicit to promote such business activity. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body. Under the above quoted definition, it is clear that the governmental body with which Sunday is associated would include Shaler Township. Accordingly, under Section 3(f) of the Ethics Law, any contract that Sunday or the business with which he is associated, would Mr. Joseph E. Vogrin Page 5 negotiate with his governmental body would have to be awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of sub- contracts. Thus, if the governmental body with which Sunday is associated entered into a contract with a given individual or entity who in turn sought to enter into a sub - contract with Shaler Township, or the business with which he is associated, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if Sunday or the business with which he is associated enters into such a contract or sub- contract after complying with the restrictions of Section 3(f), he would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting to be allowed under the Ethics Law, strict compliance with the provisions of Section 3(f) of the Ethics Law as outlined above must be followed. Unless the restrictions of Section 3(f) of the Ethics Law are complied with, such contracting would be prohibited. Regarding the specific questions you pose, Sunday could not under Section 3(a) of the Ethics Law review the invoices that have been submitted by his company which would appear on the bills payable lists. However, Mr. Sunday could vote on the bills payable list provided he did not participate or vote regarding the initial purchases or contract and provided the bills are non - discretionary, uncontested and routine in nature. Crisci, Order 726. As to the matter of filing the written memorandum with the secretary recording the minutes, Section 3(j) of the Ethics Law requires that it be filed in the first instance and it is not necessary to refile it in subsequent meetings provided it relates to the same potential conflict situation. As to the question of whether Sunday must read his disclosure at every public meeting, such disclosure would have to be publicly noted in every instance where he is abstaining due to a conflict. Although the above sets forth the criteria for Sunday's conduct under the Ethics Law, it is necessary to add a postscript to this advisory in light of provisions of the First Class Township Code: 56811. Penalty for personal interest in contracts Except as otherwise provided in this act, 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 Mr. Joseph E. Vogrin Page 6 than three hundred dollars 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. But in the case of a commissioner, if he knows that he is within the exception just mentioned, he shall so inform the commissioners and shall refrain from voting on the expenditure or any ordinance relating thereto and shall in no manner participate therein. Any official or appointee who shall knowingly violate the provisions of this section shall be subject to surcharge to the extent of damage shown to be thereby sustained by the township, to 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. 1931, June 24, P.L. 1206, art. XVIII, 1811, added 1949, May 27, P.L. 1955, 39. 53 P.S. 56811 Although Sunday would not be precluded from this business activity subject to the qualifications of Section 3(a), (f) and (j) noted above, it would appear that a question exists as to the propriety of such conduct under the First Class Township, Code. Accordingly, Sunday is cautioned that he should seek advise regarding the propriety of his conduct under the First Class Township Code from the solicitor or his private counsel. 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 First Class Township Commission for Shaler Township, Thomas Sunday is a public official /employee subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude the public official /employee or a business with which he is associated from contracting with the township, he could not use the authority of office to obtain such business and such business activity may not be conducted using governmental facilities or personnel. Any contracting must comply with the requirements of Section 3(f) of the Ethics Law noted above and the disclosure requirements of Section 3(j) to the extent applicable must be satisfied. However, a question exists as to the propriety of such conduct under the First Class Township Code and Sunday might consider seeking additional advice from Mr. Joseph E. Vogrin Page 7 legal counsel in that regard. 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 rsquestor 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 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, Vincent J. Dopko, Chief Counsel