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HomeMy WebLinkAbout93-554 HargetSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 30, 1993 Sandra L. Harget P.O. Box 96 York Haven, PA 17370 Re: Conflict, Public Official /Employee, Secretary, Borough Council, Spouse, Bid on Borough Contract. Dear Ms. Harget: This responds to your letter of April 7, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions as to bidding on a borough contract by the spouse of a borough secretary. Facts: As secretary for the York Haven Borough Council, York County, Pennsylvania, you request an advisory from the State Ethics Commission. You state that as secretary, your duties are to collect and distribute mail, . do the correspondence for Council, and run advertisements in the newspaper for the Borough. You also attend each Borough Council meeting and take the minutes. You do not sign or disburse checks from Council nor do you have a vote on Council. Your husband does mason work and Council has asked him to do work. You ask whether, since you are the secretary, your husband may a bid for a job with the Borough. Discussion: The question that first must be answered is whether you, in your capacity as a secretary for the York Haven Borough Council, would be considered a "public employee" as that term is defined in the Ethics Law. We note that, for the sake of this response, we are relying primarily on your job description which you have provided to us.The Ethics Law defines that term as follows: Section 2. Definitions 93 -554 "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. Based upon the definition of "public employee" and in light of the explanation of your job duties as set forth in your request, we conclude that you are not to be considered a "public employee' as that term is defined in the State Ethics Law. This conclusion is based upon our objective review of this information from which it appears that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee." Thus, because you are not within the classification of the term "public employee ", you would not be subject to the State Ethics Law. However, 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 anything 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. In applying the provisions of the Ethics Law to the circumstances you have submitted, your husband would not be prohibited from bidding on the masonry job for the York Haven Borough Council. 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 Borough Code. Conclusion: As a secretary for the York Haven Borough Council, you Sandra L. Harget April 30, 1993 Page 3 are not a public employee subject to the provisions of the Ethics Law. Under the Ethics Law, your position as a secretary for the York Haven Borough Council would not prohibit your husband from bidding on the York Haven Borough contract for masonry work subject to the qualifications noted above. 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 513.2(h). erely, Vincent J Dopko Chief Counsel