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HomeMy WebLinkAbout90-586 Sather Brown WilsonSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 14, 1990 Huntingdon County Board of Commissioners 90 -586 c/o Sather, Brown & Wilson Office of County Commissioners Huntingdon, PA 15542 -1486 Re: Conflict of Interest, Public Official, Contracting with Governmental Body, Solid Waste Authority, Business with Which Associated, Garbage Disposal Company, Supervisor, Township as Host to Landfill. Dear Messrs. Sather, Brown and Wilson: This responds to your letter of July 11, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition upon a solid waste authority member or a business with which he is associated from contracting with the authority and secondly upon a solid waste authority member who is also a supervisor from participating or voting when the township is a host for a landfill. Facts: As the three Huntingdon County Commissioners who are the appointing authority for the Bedford - Fulton- Huntingdon Solid Waste Authority (Authority) you seek an advisory opinion regarding the propriety of the conduct of the two members of the five member board of the Authority. The first inquiry relates to the conduct of Ralph Park who was appointed in April 1990 by the Commissioners to fill a vacancy. Park is the first and only appointee to the Authority who is also the owner of the garbage disposal company. Recently the operation of an Authority project relative to a recycling program came up for bid. A contract for this project would entail leasing Authority equipment and receiving payment for services provided. Park wanted to bid on the project but did not do so because of a concern over a possible conflict as to the contract which is over $500. You inquire as to whether the contracting would be a conflict, whether Park could abstain from voting on the award of such a contract and whether there would be any inherent conflict in this situation. Huntingdon County Commissioners Sather, Brown and Wilson Page 2 The second inquiry relates to a member who is also a township supervisor who serves on the Authority. The supervisor has been appointed to the Authority by Bedford County wherein his township serves as a host municipality for a new landfill site. The supervisor, Bernard Hoffner of Broad Top Township has served on the Authority since 1985. In 1990 the Authority entered into a contract with Broad Township. The contract is a "host municipality agreement" wherein the township is entitled to receive certain compensation for receiving solid waste at the Authority's landfill. The agreement also contains provisions protecting the township from the affects of the Authority landfill. You inquire as to whether the supervisor's appointment to the Authority or voting on a contract would constitute a conflict. Discussion: As members for Bedford - Fulton - Huntingdon Solid Waste Authority, Ralph Park and Bernard Hoffner are "public officials" as that term is defined in the Ethics Law. 65 P.S. S402; 51 Pa. Code S1.1. As such, they are subject to the provisions of the Ethics Law and the restrictions therein are applicable to them. Section 3(a) of the Ethics Law provides: Restricted Activities No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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 Huntingdon County Commissioners Sather, Brown and Wilson Page 3 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. Under Section 3(a) of the Ethics Law quoted above, a public official may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he is or a member of his immediate family is associated. Generally, the Ethics Law places no per se prohibition upon a public official or business with which he is associated from contracting with his governmental body. Pancoe, Opinion 89 -011. As owner of the garbage disposal company, it is clear that the foregoing entity is a "business with which - -- associated" as that term is defined under the Ethics Law. Under Sections 3(a), Park could not participate or vote on matters involving the contract between his governmental body (Authority) and Park or the "business with which - -- associated." In addition, the requirements of Section 3(j) of the Ethics Law must be followed whereby the reasons for the abstention must be publicly noted as well as a written memorandum to that effect must be filed with the secretary recording the minutes. Therefore, under Section 3(a), Park or the "business with which - -- associated" is not precluded from contracting with his governmental body but he could not participate or vote as to the matter of the contract and must comply with the disclosure requirements of Section 3(j) of the Ethics Law. 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 accept any thing of monetary value based upon the understanding Huntingdon County Commissioners Sather, Brown and Wilson Page 4 that the vote, official action, or judgement of the public official /employee would be influenced thereby. 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 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 an amount of $500 or more. The process must be open and public with prior public notice and subsequent public disclosure. In addition, the public official /employee may not have any supervisory or overall responsibility for the implementation or administration of the contract. Thus, 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 an amount of $500 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; Huntingdon County Commissioners Sather, Brown and Wilson Page 5 (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. Further, Section 3(f) requires that the public official could not have supervisory or overall responsibility as to the implementation or administration of the contract. Parenthetically, although the contracting in question would not be prohibited under the Ethics Law provided the requirements of Section 3(a), (f) and (j) are satisfied, a problem may exist as to such contracting under the respective code. In the instant situation, the Municipalities Authorities Act provides as follows: D. No member of the Authority or officer or employee thereof shall either directly or indirectly be a party to or be in any manner interested in any contract or agreement with the Authority for any matter, cause or thing whatsoever by reason whereof any liability or indebtedness shall in any way be created against such Authority. If any contract or agreement shall be made in violation of the provisions of this section the same shall be null and void and no action shall be maintained thereon against such Authority. 65 P.S. S312(D). Therefore, although Park would not be prohibited through his company from contracting with the Authority provided the requirements of Section 3(a) and 3(f) are satisfied, a serious problem exists under the Municipalities Authorities Act and it is suggested that either the solicitor or a private counsel be obtained regarding interpretation of that statute. Turning to your second inquiry concerning township supervisor Bernard Hoffner, the provisions of Section 3(a) of the Ethics Law quoted above would not prohibit Mr. Hoffner from voting on the contract relating to the township becoming a host municipality for the Authority's landfill since it does not appear, and it is expressly assumed, that such action would not Huntingdon County Commissioners Sather, Brown and Wilson Page 6 benefit Hoffner, a member of his immediate family or business with which he is associated. Thus, Section 3(a) of the Ethics Law would not prohibit Hoffner from voting on the host municipality agreement. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed in this advice is the applicability of the respective code. Conclusion: As members of the Bedford - Fulton- Huntingdon Solid Waste Authority, Ralph Park and Bernard Hoffner are public officials subject to the provisions of the Ethics Law. As to the conduct of Ralph Park, under Section 3(a) of the Ethics Law, a public official /employee or a "business with which - -- associated" may contract with the governmental body but could not vote or participate in the matter of the contract. As to the conduct of Bernard Hoffner, Section 3(a) of the Ethics Law would not prohibit him as an Authority member from voting on a host municipality agreement between the Authority and the township in which he serves as a supervisor. The disclosure requirements of Section 3(j) outlined above must be observed. Finally, if the contract is $500 or more, the open and public process as outlined above must be accomplished. The public official /employee could not have any supervisory or overall responsibilities as to the contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Due to the possible application of the above referenced code to Ralph Park, it is suggested that advice be obtained from the municipal solicitor or private counsel in that regard. Pursuant to Section 7(11), 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 in writing Huntingdon County Commissioners Sather, Brown and Wilson Page 7 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. cerely, kew„A2),CDQe Vincent J. Dopko, Chief Counsel