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HomeMy WebLinkAbout91-512 GuiseMr. Dennis T. Guise Pa. Fish Commission P.O. Box 1673 Harrisburg, PA 17105 -1673 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 7, 1991 91 -512 Re: Conflict, Public Official, Commissioner, Pennsylvania Fish Commission, Vote, Contracting Bid Process, Business with Which Associated. Dear Mr. Guise: This responds to your letter of January 7, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a member of the Pennsylvania Fish Commission regarding future contracting between the Commission and the Commissioner's business. Facts: As Chief Counsel for the Pennsylvania Fish Commission, and with the authorization of Fish. Commissioner Howard E. Pflugfelder, Jr., you inquire with the State Ethics Commission regarding future contracting between the Commissioner's business and the Pennsylvania Fish Commission. The Pennsylvania Fish Commission is an independent administrative commission consisting of ten citizens appointed by the Governor with the advice and consent of two - thirds of the Pennsylvania Senate. The commissioners serve for eight -year terms, with two commissioners serving "at- large" and representing boating interests and the remaining commissioners representing districts. The commissioners serve as the "board of directors" for the Fish Commission and they promulgate rules and regulations, establish agency policies and oversee agency programs. The commissioners serve without compensation other than reimbursement for their travel expenses. The commissioners appoint the Executive Director of the Commission, who is the Chief Executive Officer of the Commission. Commissioner on November 16, 1990 sworn complete t member Fish Commission unexpired Mr. Dennis T. Guise Page 2 term of a deceased Commissioner. The Commissioner is one of the two "boater" members of the Commission. He is also the President of his business, Harrisburg Seaplane Base, a full- service boat dealership with which the Commission has contracted for numerous boating related serves for many years prior to Commissioner Pflugfelder's appointment to the Fish Commission. For example, the Commission had a service purchase contract with the Harrisburg Seaplane Base for boat repairs on an "as- needed" basis. The Commission has purchased boat accessories from this business through the Department of General Services, and has contracted to moor Commission boats at the business location. All contracts have been let through the public bidding process. For some of the services, including the boat mooring contract, Harrisburg Seaplane Base may have been the only bidder as the only source offering such serves in the vicinity. In 1990, the Commission contracted with Harrisburg Seaplane Base for goods and services totalling approximately $20,000. As a member of the Fish Commission, Commissioner Pflugfelder would have no direct role in the award or administration of contracts with his business because these functions are performed by the Executive Director and the staff pursuant to the authority of the Fish and Boat Code. It is assumed that Commissioner Pflugfelder has not been appointed the Executive Director. The commissioners are not directly involved in the contracting process, and they do not review contracts, oversee contract administration, or even vote to approve contracts between the Commission and private firms. You have reviewed the State Adverse Interest Act and the State Ethics Act and you have reached some tentative conclusions on the issues which Commissioner Pflugfelder has raised. You submit your opinion that contracts between the Commission and the Commissioner's business do not appear to violate the State Adverse Interest Act. You recognize that Commissioner Pflugfelder is a "public official" as defined in the State Ethics Act. You acknowledge that although the Commissioner does not receive compensation other than reimbursement for travel expenses, the Fish Commission is not an "advisory board" and it does exercise authority to spend public funds. You submit that based upon your review of Section 3 of the Ethics Act you feel that Section 3(a) and 3(f) are implicated by contracts between the Fish Commission and Harrisburg Seaplane Base. You state your belief that these contracts do not violate either provision. With respect to Section 3(a), although you acknowledge that arguably all Fish Commission contracts derive from the authority of the commissioners, you do not believe that this would mean Mr. Dennis T. Guise Page 3 direct involvement in the contracting process and do not review any confidential information related to contracting, you submit that there would not appear to be a conflict of interest. With regard to Section 3(f) of the Ethics Law, you submit that all Fish Commission contracts are awarded through an open public process, with invitations for bids being publicized through solicitations to names on bidders lists and, when deemed appropriate, publication of notices through the Office of Procurement Information. Although the list of bidders and contract awards are public information, the Commission has not ordinarily published a formal notice of contract awards listing the bidders. You acknowledge that the Commission could publish such notices with respect to contracts with Harrisburg Seaplane Base if required. In addition to the statutory issues, Commissioner Pflugfelder is sensitive to appearance issues with regard to contracts between the Commission and his business. Because contracts with the Fish Commission are not a major part of the Commissioner's business, he would willingly forego them to avoid any appearance of an ethical problem. However, the Commission staff is concerned that the elimination of Harrisburg Seaplane Base from the bidders lists would make the acquisition of necessary boating goods and services more difficult and expensive for the Commission. Comparable facilities for boat mooring may not be conveniently or reasonably available to the Commission in required locations. You state that the Commission staff is more interested in continuing to seek bids from Harrisburg Seaplane Base then the Commissioner is interested in continuing to submit bids for such work. You request advice on the following five specific questions: 1. Is it legal for the Fish Commission to solicit bids from Harrisburg Seaplane Base for boating goods and services? 2. Is it legal for Harrisburg Seaplane Base, acting through its president, Howard E. Pflugfelder, Jr., to respond to an invitation for bids or request for proposals issued by the Fish Commission? 3. Does a Fish Commissioner have a conflict of interest with respect to a contract between the Commission and a business operated by him when the Commissioner has not used any confidential information to obtain the contract and the contract is not subject to review or approval by the commissioners? Mr. Dennis T. Guise Page 4 4. Whether a contract between the Fish Commission and a business operated by a Fish Commissioner is not illegal under Section 3(f) of the Ethics Law as long as the Commission meets the public notice and disclosure provisions of the Act? 5. What administrative requirements must the Commission follow under Section 3(f) of the State Ethics Act for providing public notice of bids and public disclosure of the results of the bidding process with respect to a contract between the Fish Commission and a business operated by a Fish Commissioner? Discussion: As a Commissioner for the Pennsylvania Fish Commission, Howard E. Pflugfelder, Jr. is a public official as that term is defined under the Ethics Law, and hence Commissioner Pflugfelder is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted 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. Mr. Dennis T. Guise Page 5 "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. In addition, Sections 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. 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(f) of the Ethics Law provides: Mr. Dennis T. Guise Page 6 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. 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 open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 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. Mr. Dennis T. Guise Page 7 Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that Mr. Dennis T. Guise Page 8 event participation is permissible provided the disclosure requirements noted above are followed. In applying the above provisions of the Ethics Law, 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 or a member of immediate family is associated. As president of Harrisburg Seaplane Base, it is clear that the foregoing entity is a business with which Commissioner Pflugfelder is associated as defined under the Ethics Law. Under Section 3(a), Commissioner Pflugfelder as President of Harrisburg Seaplane Base is not precluded from contracting with the Pennsylvania Fish Commission, but Commissioner Pflugfelder could not participate or vote on matters involving contracts between the Fish Commission and Harrisburg Seaplane Base. 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 being filed with the secretary recording the minutes. Although you have stated that Commissioner Pflugfelder would have no direct role in the award or administration of contracts with his business, would not vote to approve contracts between the Commission and private firms including his own, and would not review contracts or oversee contract administration, all of which functions are performed by the Executive Director and staff, the above restrictions are set forth to provide a complete response to the question presented. Focusing upon your specific inquiries, the propriety of the proposed conduct may only be addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or any other code of conduct other than the Ethics Law may not be considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the State Adverse Interest Act (71 P.S. S776.1 et sea.). With regard to the question presented in your first inquiry, since our jurisdiction relates to public officials, public employees, candidates, nominees and persons having involvement with them, the scope of our response must be limited to reviewing this matter from the perspective of Commissioner Pflugfelder as a Commission member. With regard to your second inquiry, although you have asked what Commissioner Pflugfelder can do vis -a -vis the business, we can only look at the perspective of the public official. Under Mr. Dennis T. Guise Page 9 the Ethics Law, Commissioner Pflugfelder is not precluded from contracting with the Pennsylvania Fish Commission subject to the restrictions of Sections 3(a), (b), (c), (f) and (j) discussed above. The Commissioner may respond to an invitation for bids or request for proposals issued by the Fish Commission which conforms to the requirements for an open and public process set forth in Section 3(f). Thus, the process would entail the Commission advertising for requests for proposals as opposed to a situation of actively soliciting a bid from Commissioner Pflugfelder or this particular business. In addition, the open and public process would require that the process truly be open and public rather than a solicitation directed to selective bidders lists. With regard to your third inquiry, under the facts and circumstances as you have submitted them, a Fish Commissioner would not transgress Section 3(a) of the Ethics Law by contracting with the Fish Commission subject to the express condition that the Commissioner complies with the restrictions set forth herein. With regard to your fourth inquiry, this question may only be addressed from the perspective of the public official. Commissioner Pflugfelder would not transgress Section 3(f) of the Ethics Law by virtue of a contract between the Fish Commission and Harrisburg Seaplane Base as long as the restrictions of Section 3(f) are observed and subject to the express condition that there is no violation of Sections 3(a), (b), (c) or (j). In response to your fifth and final inquiry, the requirements of the Ethics Law with respect to an open and public process, have been set forth above. (See also, Williamson, Advice 90 -601 (later supplemented in Advice 90- 601 -S)). In addition to the above provisions and restrictions, Commissioner Pflugfelder may find general guidance in the principles of the legislative purpose set forth at Section 1 of the State Ethics Act. Although public officials should not be discouraged from maintaining their community contacts through their occupations and professions, "...public office is a public trust" and "...any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust." 65 P.S. §401(a). The public has a right to be assured that the financial interests of public officials do not conflict with the public trust. Id. Given these enunciated principles, the public interest must be paramount. In Crisci, Opinion 89 -013, the Commission cautioned a public official who did not consider the public interest to be paramount: Mr. Dennis T. Guise Page 10 Additionally, you have advised this Commission specifically and most directly that your first loyalty is to your private employer and not the governmental body on which you serve or the public. This is at odds with the stated purpose of the Ethics Law. With this line now clearly marked, we feel obligated to advise you in the clearest language possible that you must exercise the utmost caution in any action that you take that may be at variance with the provisions of the Law. Id. at 4. 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 herein is the applicability of the State Adverse Interest Act. Conclusion: As a Commissioner for the Pennsylvania Fish Commission, Howard E. Pflugfelder, Jr. is a public official subject to the provisions of the Ethics Law. The Ethics Law would not preclude Commissioner Pflugfelder as president for Harrisburg Seaplane Base from contracting with the Pennsylvania Fish Commission subject to the restrictions herein. Under Section 3(a) of the Ethics Law, the Commissioners is precluded from participating or voting on matters involving contracts between the Fish Commission and Harrisburg Seaplane Base. The disclosure requirements of Section 3(j) outlined above must be observed. If the contract is valued at $500 or more, Commissioner Pflugfelder may not contract in response to a "solicited" bid from the Commission which is not truly open and public, but rather the requirements of Section 3(f) regarding an open and public process as outlined above must be accomplished. Commissioner Pflugfelder, as President of Harrisburg Seaplane Base, may respond to requests for proposals subject to the restrictions of Section 3(b), (c) and (f). Commissioner Pflugfelder may not have any supervisory or overall responsibility as to the implementation or administration of such contracts between Harrisburg Seaplane Base and the Fish Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Mr. Dennis T. Guise Page 11 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. ncerely, ncent J'. Dopko, Chief Counsel