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HomeMy WebLinkAbout91-583 FoltzMr. George Foltz, Jr. 61 Bock Lane Baden, PA 15005 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 20, 1991 91 -583 Re: Conflict, Public Official /Employee, Borough Council Member, Business with which Associated, Garage, Towing Service, Designation For Use by Borough Police Department. Dear Mr. Foltz: This responds to your letter of August 26, 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 you as a Borough Council Member with regard to your family's automobile repair garage and towing service of which you are a shareholder, as one of two towing businesses which the Borough Police Department contacts for accidents and breakdowns, where no money is received from the Borough but rather the individual in need of the tow pays for this service. Facts: As a recently elected Borough Council Member for Economy Borough with your two -year term commencing in January, 1992, you seek the advice of the State Ethics Commission with regard to a family- operated automobile repair garage and towing service, Foltz Auto Clinic, of which you are a shareholder. In September, 1989, the Borough Police Department informed you that Foltz Auto Clinic would be one of two businesses placed on an alternating monthly schedule to be called to accident scenes or breakdowns when towing is needed. You have submitted a copy of the letter dated September 11, 1989 from the Economy Borough Police Department, together with a towing schedule for the period of October, 1989 through January, 1991, which documents are incorporated herein by reference. You state that the individual in need of the tow is the party who is billed. No money is received from the Borough of Economy for this service. Mr. George Foltz, Jr. September 20, 1991 Page 2 You specifically inquire whether you may continue to offer towing services for the Borough Police Department, given that no money is paid from the Borough to you or to your family's business. , Discussion: As a Borough Council Member for Economy Borough, Pennsylvania, you are a public official as that term is defined under the Ethics Law, and hence you are 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. "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. George Foltz, Jr. September 20, 1991 Page 3 "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. "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. It would appear from the facts as you have submitted them, that you do not have a contract with the Borough for providing towing services. However, a "contract" as that term is defined by the Ethics Law does not require a written contract, but would specifically include an agreement or arrangement for the acquisition of services by a political subdivision. Thus, should Mr. George Foltz, Jr. September 20, 1991 Page 4 you or your family's business agree or arrange to provide services to the Borough, such as, for example, servicing or towing Borough police vehicles, such would constitute a "contract" as defined under Ethics Law. For contracts valued at $500.00 or more, the restrictions of Section 3(f) of the Ethics Law apply. Those restrictions are set forth for your information. 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 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; Mr. George Foltz, Jr. September 20, 1991 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. 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. Turning to your specific inquiry, you ask whether Foltz Auto Clinic may continue to offer towing services for the Police Department given that no money is received from the Borough of Economy for this service, but rather, the individual in need of the tow is the party billed. The provision of such services by Foltz Auto Clinic in and of itself would not constitute a conflict of interest for you. However, you could not use the authority of your office or confidential information received through your public office, to obtain a private pecuniary benefit for yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Thus, you could not apply any pressure or influence to maintain Foltz Auto Clinic as a towing service to be contacted by the Borough Police Department. Furthermore, if any matter involving Foltz Auto Clinic should come before the Borough Council, you would have a conflict of interest. In each instance of a conflict of interest, you would be required to observe the disclosure requirements of Section 3(j) of the Ethics Law. 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 Mr. George Foltz, Jr. September 20, 1991 Page 6 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 wiabstain the as person recording the minutes utesor to that effect P supervisor. 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 Borough Code. Conclusion: As a Borough Council Member for Economy Borough, you are a public official subject to the provisions of the Ethics Law. The Ethics Law would not prohibit your family's automobile repair garage /towing service, Foltz Auto Clinic, from continuing to serve as a towing service contacted by the Economy Borough Police Department for accidents or breakdowns when towing is needed, where no money is received from the Borough but rather the individual in need of the tow is the party billed. You would have a conflict of interest where the use of your authority of office or any confidential information received by holding public office would result in a private pecuniary benefit to yourself, Mr. George Foltz, Jr. September 20, 1991 Page 7 any member of your immediate family, or a business with which you or a member of your immediate family is associated. You may not apply any pressure or influence to maintain Foltz Auto Clinic as a towing service to be contacted by the Borough Police Department. Should any matter involving Foltz Auto Clinic come before the Borough Council, you would have a conflict of interest. In each instance of a conflict of interest, you would be required to abstain from any participation or vote in the matter and you would further be required to comply with the disclosure requirements of Section 3(j) of the Ethics Law as set forth above. The restrictions of Section 3(f) set forth above must be observed if and when applicable. 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. ncerely, crtAK1 Vincent . Dopko Chief Counsel