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HomeMy WebLinkAbout93-604 BishopSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 21, 1993 Jeffrey W. Bishop Chairman, Board of Supervisors, Plain Grove Township R.D. #2, Box 108 Volant, PA 16156 Re: Conflict, Public Official /Employee, Township Supervisors, Purchase of Computer Equipment from Township Secretary /Treasurer /Tax Collector for Use by Township. Dear Mr. Bishop: 93 -604 This responds to your letters of September 2, 1993 and September 15, 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 upon Township Supervisors from purchasing computer equipment from the Township Secretary /Treasurer /Tax Collector for Township use. Facts: You are Chairman of the Board of Supervisors of Plain Grove Township, Lawrence County. You state that the Township Secretary /Treasurer /Tax Collector purchased her own computer equipment and software in order to perform various township and tax collection business. She has serious health problems and desires to sell her computer and software to the Township. The Township wishes to purchase the equipment in order to make a smooth transition for the new person who will be taking over her position. You indicate that the cost would be less than $2,000.00, approximately the cost to her when she bought the computer and software. Based on the above, you seek advice from the State Ethics Commission as to whether any conflicts of interest would exist under the Ethics Law if the Township purchases this equipment. It is noted that this request is made on behalf of all three Township Supervisors who joined in this request for advice. Bishop, 93 -604 September 21, 1993 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Supervisors for Plain Grove Township are public officials as that term is defined under the Ethics Law, and hence 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 office or employment." The actual power provided by law, the exercise of which is necessary to the performance of Bishop, 93 -604 September 21, 1993 Page 3 duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "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 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. 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 Bishop, 93 -604 September 21, 1993 Page 4 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; 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 (3) 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 u)aking of the contract or subcontract. Bishop, 93 -604 September 21, 1993 Page 5 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 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 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances presented, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /public employment or confidential information received by holding such public position for the Bishop, 93 -604 September 21, 1993 Page 6 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. In this case, there would be no conflict of interest if the Township Supervisors purchased the computer equipment from the Township Secretary /Treasurer /Tax Collector for Township use provided that there is no prohibited family or business relationship between the supervisors and the Secretary /Treasurer/ Tax Collector. If such relationship exists, a conflict of interest would arise such that the provisions of Section 3(j) must be followed. This Advice addresses the applicability of the Ethics Law to the conduct of the Board of Supervisors of Plain Grove Township only. Specifically not addressed is the applicability of the Ethics Law as it relates to the conduct of the Township Secretary /Treasurer /Tax Collector. 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. Conclusion: Township Supervisors for Plain Grove Township are public officials subject to the provisions of the Ethics Law. Based upon the submitted facts in this case, under the Ethics Law, there would be no prohibition or restrictions on the Township Supervisors from purchasing computer equipment from the Township Secretary /Treasurer /Tax Collector provided there is no prohibited family or business relationship involved. If such relationship does exist, the provisions of Section 3(j) must be followed. 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 any supervisor disagrees with this Advice or has any reason to challenge same, a request may be made that the full Commission review this Advice. A personal appearance before the Bishop, 93 -604 September,21, 1993 Page 7 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). cerely, vv " (( v r Vincent J. Dopko Chief Counsel