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HomeMy WebLinkAbout91-552 ScheffeySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 28, 1991 Mr. James D. Scheffey Law Offices Wrigley, Yergey, Daylor, Scheffey 1129 High Street P.O. Box 776 Pottstown, PA 19464 -0776 91 -552 Re: Former Public Official; Section 3(g); Washington Township; Township Supervisor; Bid; Gasoline and Diesel Fuel Dear Mr. Scheffey: This responds to your letters of May 6, 1991, May 14, 1991 and June 24, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a former Township Supervisor or the present Board of Township Supervisors with regard to the former Supervisor submitting a bid to provide unleaded gasoline and diesel fuel for the Township's various motor vehicles. Facts: As the Solicitor for Washington Township, Berks County, Pennsylvania, you have been authorized and requested by the Board of Supervisors and by a former Supervisor, Ted Panaccion, Jr., to seek the advice of the State Ethics Commission. You have submitted the following facts both in your above - referenced letters and in two substantive telephone conversations with Assistant Counsel for the Commission on May 13, 1991 and on June 24, 1991, the contents of which telephone conversations are incorporated herein by reference. The Township has solicited bids for both unleaded gasoline and diesel fuel for its various motor vehicles, as it has done in past years. In prior years, these products would be delivered to the. Township Municipal Building where they would be stored in tanks. However, because of the recent federal and state legislation regarding underground storage tanks, the Township also decided to seek bids for the purchase of gasoline and diesel Mr. James D. Scheffey Page 2 fuel at the supplier's place of business. Although it has not . made any formal decision, the Board of Supervisors is contemplating removing the existing underground tanks and purchasing the gasoline and diesel fuel products at the supplier's location. Part of the specifications require that the vendor be located within five miles of the Township Building and be available 24 hours a day to provide fuel to the Township vehicles. The Board of Supervisors selected a five mile radius because they did not want to require both their employees and the equipment to travel a greater distance due to the time involved, the consumption of fuel, and the distance on the highway. A neighboring Township had used such a five mile radius in its bid specifications, and the Washington Township Board of Supervisors believed this to be a reasonable distance. The only vendor able to provide this type of service is Bechtelsville Service Center which is located three miles from the Township Building, just south of the southerly Township boundary. Hotaever, Bechtelsville Service Center is owned by the former Township Supervisor, Ted Panaccion, Jr., and his wife, Anita. Mr. Panaccion resigned as a Supervisor on March 21, 1991. The Panaccion's are interested in submitting a bid on the products and if successful, entering into a contract with the Township. Mr. and Mrs. Panaccion sell Sunoco products. Sunoco has a system for purchasing products on credit, with Sunoco billing the customer directly. Likewise, bills would be paid directly to Sunoco, not the vendor. Thus, in this case, Sunoco would issue a credit card to the Township, and at the end of every month, Sunoco would send a bill to the Township. The Township would, in a the bill directly pay Y to Sunoco. Given these circumstances, you state that it appears the contractual arrangements would be between the Township and Sunoco, not Mr. and Mrs. Panaccion. However, although you believe the contractual relationship would be between Sunoco and the Township, you advise that Mr. and Mrs. Panaccion would receive approximately $.01 to. $.01 -1/2 per gallon for all gasoline and diesel fuel purchased by the Township at the Panaccion's service station. You cite Section 3(g) of the Ethics Law, 65 P.S. 5403(g), but state your uncertainty as to whether that provision was meant to preclude the proposed conduct outlined above. You note that Section 3 does permit an incumbent public official or public employee to be awarded a contract with the governmental body with which he or she is associated when the contract has been awarded through an open and public process. Therefore, you thought that Mr. James D. Scheffey Page 3 the same provision might apply after the public official or . public employee has left office. Based upon all of the above, you seek the advice of this Commission as to whether Mr. Panaccion, as a former Township Supervisor, may submit a bid to the Washington Township Board of Supervisors in response to its solicitation for bids for unleaded gasoline and diesel fuel, and whether the Board of Supervisors could award a bid, or if below the bidding requirements, could purchase products from Mr. and Mrs. Panaccion's service station with the understanding that Sunoco would bill the township directly and the township would pay the bill directly to , Sunoco. Discussion: As a Township Supervisor for Washington Township, Berks County, Pennsylvania, Ted Panaccion, Jr. would be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of public service, Mr. Panaccion became a "former public official" subject to the restrictions of Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Mr. James D. Scheffey Page 4 In applying the above definition to the instant matter, we . must conclude that the governmental body with which Mr. Panaccion was associated upon termination of public service would be the Washington Township Board of Supervisors. Therefore, within the first year after Mr. Panaccion's termination of service with the Washington Township Board of Supervisors, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Washington Township Board of Supervisors. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. Mr. James D. Scheffey Page 5 The Commission, in Povovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, Mr. Panaccion would be prohibited from engaging in the type of activity outlined above. Applying the above provisions and restrictions to the circumstances which you have presented, we will first address your inquiry from the perspective of the Board of Supervisors. Section 3(g) of the Ethics Law would not apply to the Washington Township Board of Supervisors because it is a governmental body. Rather, Section 3(g) of the Ethics Law only applies to individuals in their capacities as present /former public officials or present /former public employees. Thus, Section 3(g) of the Ethics Law would not restrict the Board of Supervisors as a governmental body from awarding a bid to Mr. and Mrs. Panaccion's business, or if below the bidding requirements, purchasing products from Mr. and Mrs. Panaccion's service station. Next, your inquiry must be addressed from the perspective of Mr. Panaccion as a former public official. Section 3(g) of the Ethics Law clearly applies to Mr. Panaccion as a former public official. Bechtelsville Service Center, which is owned by Mr. Panaccion and his wife, would clearly fall within the Mr. James D. Scheffey Page 6 definition of "person" as it is defined in Section 2 of the Ethics Law. The activity of submitting a bid or contract proposal signed by or containing the name of Mr. Panaccion as a former public official would clearly fall within the definition of "represent" both as defined in Section 2 of the Ethics Law and as interpreted by the Commission in Popovich, Opinion 89 -005, as set forth above. Thus, Section 3(g) of the Ethics Law would restrict Mr. Panaccion, as a former public official, from submitting a bid or contract proposal signed by or containing his name to the Washington Township Board of Supervisors. The same cited authorities would preclude Mr. Panaccion from personally appearing before the Board of Supervisors or negotiating with the Board in general or as to contracts. Furthermore, Mr. Panaccion could not participate in any matters before the Washington Township Board of Supervisors as to acting on behalf of a "person" which would include the Bechtelsville Service Center by definition. Mr. Panaccion, as a former public official, may assist in the preparation of any documents presented to Washington Township Board of Supervisors so long as Mr. Panaccion is not identified as the preparer. Mr. Panaccion may also counsel any person regarding that person's appearance before Washington Township Board of Supervisors. Once again, however, the activity in this respect should not be revealed to Washington Township Board of Supervisors. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of Washington Township Board of Supervisors to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Although it is true that Section 3(f) of the Ethics Law does permit a public official or public employee to be awarded a contract with the governmental body under certain restrictions, by its very terms, Section 3(f) of the Ethics Law only applies during the tenure of the public official or public employee. Section 3(g) of the Ethics Law is an entirely different provision which applies to former public officials or public employees. A careful reading of these two sections clearly establishes that Section 3(f) of the Ethics Law cannot be read to emasculate or circumvent the restrictions of Section 3(g) of the Ethics Law. They simply apply to two different situations. If Section 3(g) appears to you to place more restrictions on the public official or public employee after he leaves his public position than while he is there, it may be because some of the other protective measures which are in place during public service no longer apply after termination. Section 3(g) Mr. James D. Scheffey Page 7 specifically prohibits revolving -door conduct by the public official or public employee who leaves his public position. Thus, based upon the above, Mr. Panaccion is a former public official, and as such, he is prohibited from representing Bechtelsville Service Center, a business owned by Mr. Panaccion and his wife, before his former governmental body, the Washington Township Board of Supervisors. 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 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. 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. Specifically, not addressed herein, is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for Washington Township, Berks County, Pennsylvania, Ted Panaccion, Jr. would be considered a "public official" as defined in the Ethics Law. Upon termination of service with the Washington Township Board of Supervisors, Mr. Panaccion became a "former public official" subject to Section 3(g) of the Ethics Law. The former governmental body is the Washington Township Board of Supervisors. The restrictions as to representation outlined above must be followed. Section 3(g) of the Ethics Law would not apply to the Board of Supervisors itself because it is a governmental body rather than an individual public official or public employee to which Section 3(g) is directed. Thus, Section 3(g) of the Ethics Law would not restrict the Board of Supervisors of Washington Township with regard to awarding a bid to the Bechtelsville Service Center, or if below the bidding requirements, purchasing products from the Bechtelsville Service Center. In applying Section 3(g) of the Ethics Law to Mr. Panaccion in his individual capacity as a former public official, Mr. Panaccion would be restricted by Section 3(g) from representing a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after leaving that body. The Bechtelsville Service Station is within the definition of Mr. James D. Scheffey Page 8 "person" as set forth in the Ethics Law, and thus, the restrictions set forth above would apply to any such activity by Mr. Panaccion in this matter. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. VJD /slj cerely, Vincent J. Dopko, Chief Counsel