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HomeMy WebLinkAbout90-601 WilliamsonDear Mr. Williamson: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 17, 1990 Mr. J. Michael Williamson 90 -601 Williamson, Coploff & Hanna 136 East Water Street Lock Haven, PA 17745 Re: Conflict of Interest, Public Official, Contracting with Governmental Body, Municipal Authority, Garbage Disposal Firm. This responds to your letters of August 20, 1990 and September 13, 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 member of a municipal authority or a "business with which he is associated" from contracting with the Authority as to garbage disposal. Facts: As the solicitor for the Clinton County Solid Waste Authority (Authority) which was formed by the Clinton County Commissioners and on behalf of Gail Love who has been recently been appointed to the Authority, you request advice regarding the propriety of a garbage disposal firm, of which Gail Love is the principal, contracting with the Authority. After referencing Section 312(d) of the Municipal Authorities Act of 1945, you indicate that if circumstances arise, you will advise Mr. Love and the Authority of your position regarding issues relative to that enactment. Your more immediate concern relates to the possible implication of the Ethics Law relative to limiting or prohibiting Mr. Love from voting on various issues which might come before the Authority. Until a response is received, it will be Mr. Love's responsibility to determine what may constitute a conflict; you recognize that the Ethics Law restricts the use of authority of office or confidential information to obtain a private pecuniary benefit as to the public official /employee, member of his immediate family or business with which he is associated. Since many issues could arise in the course of Mr. Love's term as an Authority member, you indicate that it is difficult to determine what may be a conflict of interest. You further that in the discharge of his duties, Mr. Love - - Mr. J. Michael Williamson Page 2 should abstain from voting on any matter which would be a conflict and prior to voting publicly announce and disclose the nature of his interest as well as file a written memorandum to that effect with the person recording the minutes. Discussion: As member for Clinton County Solid Waste Authority, Mr. Love is a "public official" as that term is defined in the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. As such, he is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. 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 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. Mr. J. Michael Williamson Page 3 "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. As principal of the garbage disposal firm, 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), Mr. Love could not participate or vote on matters involving the contract between the government body and garbage disposal firm 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), Mr. Love or the "business with which - -- associated" is not precluded from contracting with Clinton County Solid Waste Authority 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 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 Mr. J. Michael Williamson Page 4 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; (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. Mr. J. Michael Williamson Page 5 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. 5312(D). 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 member of the Clinton County Solid Waste Authority, Mr. Love is a public official subject to the provisions of the Ethics Law. 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. 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 in this matter, 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 Mr. J. Michael Williamson Page 6 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. cerely, 4DTIL Vincent )Dopko, Chief Counsel