Loading...
HomeMy WebLinkAbout93-502 LongMr. Harold G. Long 1185 Scalpy Hollow Road Drumore, PA 17518 Dear Mr. Long: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 5, 1993 93 -502 Re: Conflict, Public Official /Employee, Contracting, Township Supervisor, Business with which Associated. This responds to your letter of November 17, 1992, 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 or a business with which he is associated with regard to contracting with the township. Facts: As a Supervisor for Drumore Township, you request an advisory from the State Ethics Commission. You are the owner of Long's Paving & Seal Coating, which does placing of prepared mix or oil and chip work on highways. You state that during past years, you were the low bidder to do repair work on highways within townships in Lancaster County. You state that the bidding was done in accordance with the Sunshine Law, but a state audit found that there was a problem. You further state that this Commission investigated and found that you participated in decisions to award contracts in excess of $500.00 to your company without an open and public process. You request an advisory as to whether your company can be hired in the future to do work in Drumore Township. You state that while you were doing this work in the Township, the Township ~enjoyed quite a savings." Discussion: It is initially noted . that your request for an advisory may only be addressed with regard to prospective conduct. Past conduct is beyond the scope of an advisory and may not be addressed. As a Township Supervisor for Drumore Township, you are a public official as that term is defined under the Ethics Law, and Mr. Harold G. Long January 5, 1993 Page 2 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 of 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. "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 Mr. Harold G. Long January 5, 1993 Page 3 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 any thing 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 been 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 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 Mr. Harold G. Long January 5, 1993 Page 4 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, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (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. 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 with the governmental body. 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 Mr. Harold G. Long January 5, 1993 Page 5 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 and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office or confidential information received by holding that position for the advancement of his own personal financial gain or that of a business with which he is associated. Thus, for example, you would obviously have a conflict of interest which would preclude your participation as a public official as to Drumore Township projects for which you or your business would be submitting a proposal. Additionally, you would have a conflict of interest in considering bids /proposals to do such work -- either your own or those of your competitors. See, Pepper, Opinion 87 -008. In each instance of a conflict of interest, you would be required to abstain and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Mr. Harold G. Long January 5, 1993 Page 6 Furthermore, under Section 3(a) of the Ethics Law, you could not perform private business using governmental facilities or personnel. In particular you could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out private business activities. In addition, you could not during government working hours, solicit to promote such business activity. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body. The term "governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. Under the above quoted definition, it is clear that the governmental body with which you are associated would include Drumore Township. Accordingly, under Section 3(f) of the Ethics Law, any contract that you or the business with which you are associated would negotiate with the governmental body would have to be awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of sub - contracts. Thus, if the governmental body with which you are associated entered into a contract with a given individual or entity who in turn sought to enter into a sub - contract with you, or the business with which you are associated, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if you or the business with which you are associated would enter into such a contract or sub - contract after complying with the restrictions of Section 3(f), you would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting to be allowed under the Ethics Law, strict compliance with the provisions of Section 3(f) of the Ethics Law as outlined above must be followed. Unless the restrictions of Section 3(f) of the Ethics Law are complied with, such contracting would be prohibited. Mr. Harold G. Long January 5, 1993 Page 7 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 Second Class Township Code. However, you are advised that there are serious concerns as to the propriety of your proposed conduct under the Second Class Township Code and specifically the following provision: (f) Except as herein provided, no township official, either elected or appointed, who knows, or who by the exercise of reasonable diligence, could know, shall be interested to any appreciable degree, either directly or indirectly, in any contract for the sale or furnishing of any supplies or materials for the use of the township, or for any work to be done for such township involving the expenditure by the township of more than three hundred dollars ($300) in any year, but this limitation shall not apply to cases where such officer, or appointee of the township, is an employe of the person, firm or corporation to which the money is to be paid in a capacity with no possible influence on the transaction, and in which he cannot be possibly benefited thereby, either financially or otherwise: Provided, however, That in the case of a supervisor, if he knows that he is within the exception just mentioned, he shall so inform the supervisors and shall refrain from voting on the expenditures, or any ordinance relating thereto, and shall in no manner participate therein: Provided, further, That any such official or appointee who shall knowingly violate this provision shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the township, ouster from office, and shall be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500): Provided, That in the case of the purchase of material for the construction, reconstruction, maintenance and improvement of roads and bridges, the contract, which shall be in writing, and shall be let only on standard specifications of the Department of Transportation, and materials so purchased shall only be used in accordance with specifications of said department. Mr. Harold G. Long January 5, 1993 Page 8 53 P.S. 565802(f). It is strongly recommended that you secure the advice of legal counsel regarding the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for Drumore Township, you are a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude you or a business with which you are associated from contracting with Drumore Township, you could not use the authority of office or confidential information to obtain such business and such business activity may not be conducted using governmental facilities or personnel. The restrictions of Section 3(f) of the Ethics Law set forth above must be observed. It is strongly recommended that you secure the advice of legal counsel as to the applicability of the Second Class Township Code as to your proposed conduct. 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. S)ncerely, Vincent . Dopko Chief Counsel