HomeMy WebLinkAbout91-579 SwansonDear Ms. Swanson:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. 80X 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 19, 1991
Ms. Cathy Swanson, Secty /Treas. /Office Mgr. 91 -579
Dingman Township Board of Supervisors
Dingman Township Municipal Building
RR 1 Box 96, Fisher Lane
Milford, PA 18337
Re: Conflict, Public Official /Employee, Township Supervisor, Use
of Authority of Office, Voting, Immediate Family, Brother,
Contracting with Township
This responds to your letters of July 22, 1991 and August
12, 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 Township
Supervisor with regard to his brother's performing mowing
services for the Township, where the Supervisor has no business
association with his brother and does not financially benefit in
any way from such services.
Facts: As the Secretary /Treasurer /Office Manager of the Dingman
Township Board of Supervisors, you seek the advice of the State
Ethics Commission on behalf of a Township Supervisor, Chairman
John E. Quinn. You state that Chairman Quinn's brother is
employed periodically to perform mowing services for the
Township. The Supervisors have approved such services and
payment, but several times in the past it was not reflected in
the minutes. Chairman Quinn has no business association with his
brother, nor does he financially benefit in any way from these
services.
It is noted that a prior Advice, Advice 89 -595, was issued
to Mr. Quinn on another matter.
Discussion: It is initially noted that your request for an
advisory opinion may only be addressed with regard to prospective
conduct. This Advice expressly does not consider past conduct
which would appear from your inquiry to have taken place. A
Ms. Cathy Swanson
September 19, 1991
Page 2
reading of Sections 7(10) and (11) of the Ethics Act makes it
clear that an opinion /advice may be given only as to prospective
(future) conduct. If the activity in question has already
occurred, the Commission may not issue an opinion /advice but any
person may then submit a signed and sworn complaint which will be
investigated by the Commission if there are allegations of Ethics
Law violations by a person who is subject to the Ethics Law.
As a Township Supervisor for Dingman Township, Chairman
Quinn is a public official as that term is defined under the
Ethics Law, and hence he 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 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
Ms. Cathy Swanson
September 19, 1991
Page 3
performance of duties and responsibilities
unique to a particular public office or
position of public employment.
"Immediate family." A parent, spouse,
child, brother or sister.
"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.
"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:
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
Ms. Cathy Swanson
September 19, 1991
Page 4
(3)
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;
public disclosure
considered and;
(4) public disclosure
and accepted.
of all applications or proposals
of the contract awarded and offered
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.
It is noted that although you have stated that Chairman
Quinn's brother is "employed periodically" to perform the mowing
Ms. Cathy Swanson
September 19, 1991
Page 5
services for the Township, you have also stated that the
Supervisors have approved such services and payment. This would
suggest that indeed Chairman Quinn's brother is not an "employee"
of the Township such that he would be on its payroll, but rather,
that he contracts with the Township to provide those services to
it. The definition of "contract" as set forth in the Ethics Law
is not restricted to written contracts but specifically includes
agreements or arrangements by which political subdivisions
acquire services. Thus, if the value of such contract(s) is
$500.00 or more, Section 3(f) would apply.
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
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.
Ms. Cathy Swanson
September 19, 1991
Page 6
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
event participation is permissible provided the disclosure
requirements noted above are followed.
In this particular situation, it is clear that Chairman
Quinn would have a conflict of interest with regard to matters
involving his brother's performing mowing services for the
Township, because any use by Chairman Quinn of the authority of
office or confidential information he may receive by holding
public office for the private pecuniary benefit of his brother
would specifically fall within the definition of "conflict of
interest" as set forth in the Ethics Law. The fact that Chairman
Quinn himself has no business association with his brother and
would not personally financially benefit from his brother's
providing mowing services to the Township would not alter this
conclusion. Thus, Chairman Quinn would have a conflict of
interest in any matter regarding his brother's performing mowing
services for compensation by the Township, which matters would
include but not be limited to approving such services and payment
for same. In all such matters, Chairman Quinn must abstain and
comply with the disclosure provisions of Section 3(j) of the
Ethics Law, set forth above.
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
note addressed herein is the applicability of the Second Class
Township Code.
Conclusion: As a Township Supervisor for Dingman Township,
Chairman Quinn is a public official subject to the provisions of
the Ethics Law. It would be a conflict of interest for Chairman
Quinn to in any way use the authority of his office or
confidential information received by holding public office 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. Matters involving mowing
services by Chairman Quinn's brother for compensation by the
Township, which would include but not be limited to the approval
of such services and payment for same, would constitute a
Ms. Cathy Swanson
September 19, 1991
Page 7
conflict of interest for Chairman Quinn. In each instance of a
conflict of interest, Chairman Quinn would be required to abstain
and additionally to comply with the disclosure requirements of
Section 3(j) of the Ethics Law as set forth above. Additionally,
the restrictions of Section 3(f) must be observed for contracts
valued at $500.00 or more. `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
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.
Sincerely,
Vincent J. Dopko
Chief Counsel