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HomeMy WebLinkAbout94-507 AmentlerRocco T. Amentler, Jr. North Penn Insurance Associates Route 653 P.O. Box 187 Freeland, PA 18224 Dear Mr. Amentler: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 3, 1993 94 -507 Re: Conflict, Public Official /Employee, Tax Collector, Use of Authority of Office or Confidential Information, Business with which Associated, Insurance business, Writing Tax Collector Bond. This responds to your letter of December 17, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law prohibits or restricts a tax collector from having his private business write his own tax collector's bond. Facts: You are the newly elected Tax Collector in Foster Township, Luzerne County. Your four -year term will begin in January, 1994. In your private business, you are a principal in North Penn Insurance Associates. You are requesting an advisory from the State Ethics Commission as to whether it would be considered a conflict of interest if North Penn Insurance Associates writes your tax collector bond. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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 material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Rocco T. Amentler, Jr. February 3, 1994 Page 2 As a Tax Collector for Foster Township, 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 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 Rocco T. Amentler, Jr. February 3, 1994 Page 3 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. 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 Rocco T. Amentler, Jr. February 3, 1994 Page 4 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, 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 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 (3) Rocco T. Amentler, Jr. February 3, 1994 Page 5 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. Your specific inquiry may be answered two ways depending upon the existence or absence of certain facts. Since you did not submit sufficient facts for a singular response to be provided, both alternatives will be presented. In applying the above provisions of the Ethics Law to this case, no public official may use his position in order to obtain a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. He may not use confidential information obtained in his office for similar purposes. Based upon the above provision of law, the Commission on a number of occasions has determined that a public official may not participate in his government body's discussions or decisions relating to a contract for the purchase of insurance from a company with which the public official is employed, associated or for which he is an agent. Within Section 3(a) of the State Ethics Act, such a public official may not vote or otherwise participate in the decision to award the contract to such a company, including lobbying for a particular result or attempting to influence the selection of the company. See SkraDits, 84 -015, Carmella, 84 -547. The Commission has further determined that within this provision of the Act such a public Rocco T. Amentler, Jr. February 3, 1994 Page 6 official, while not prohibited completely from writing the tax collector's bond, must in addition to the above requirements, have his abstention publicly recorded along with the reasons therefor in compliance with Section 3(j). See Al len, 86 -518. Based upon the foregoing interpretation of the State Ethics Act and previous opinions and advices of the Ethics Commission, you cannot act so as to be the individual who decides what bonding company will be selected in this matter. Accordingly, if the township in which you serve as tax. collector solicits the appropriate proposals and selects the insurance company for the issuing of this bond, you will be detached from the selection of the bonding company. The foregoing assumes that you would not use the authority of your office to lobby or recommend that the municipality use your business to write the bond. Under these circumstances, your company could write the tax collector bond, however, you still must act in accordance with the open and public process requirements of Section 3(f) set forth above. If, however, you are the final authority for deciding what companies would be solicited for proposals, and what company would ultimately be chosen for the placement of the your d if as decided to have your company write the bond, y public official would thereafter result in the receipt of a private pecuniary benefit for yourself or a business with which you are associated. Such conduct is prohibited under the Ethics Law. In addition to the foregoing, C ass it Township Code provides t as instant situation, the Second follows: (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 b three hundred dollars ($300) in any y r, limitation shall not apply to cases where such officer, or appointee of the township, is an employee 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 Rocco T. Amentler, Jr. February 3, 1994 Page 7 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. 53 P.S. §65802(f). Since contracting may be prohibited by the above quoted provision �f the Code, but not under the Ethics Law, it is suggested that advice in that regard be sought from the municipal solicitor or from private counsel. 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 respective municipal code. Conclusion: As Tax Collector for foster Township, Luzerne County, you are a public official subject to the provisions of the Ethics Law. You may not use your public office in order to receive a private pecuniary benefit for yourself or a business with which you are associated. If you do not participate in the selection of the insurance company that will write your bond, you may, consistent with the Ethics Law, contract with the township for the bond, provided all the provisions of the Ethics Law, including Sections 3(f) and 3(j), are followed. If, however, you are the one who makes the final decisions regarding obtaining the bond, you would be prohibited under the Ethics Law, from writing your own bond. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Rocco T. Amentler, Jr. February 3, 19 Page 8 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 requester 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 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must date actually l re at the Commission within fifteen (15) days of the Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). iSi cerely, such. w-4 Vincent J. Dopko Chief Counsel