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HomeMy WebLinkAbout94-532 PetitDear Mr. Petit: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 25, 1994 John C. Petit, Esquire 96 North Main and Chestnut Street Washington, PA 15301 -4515 94 -532 Re: Conflict, Public Official /Employee, Township Supervisor, Purchase of School District Property within the Township. This responds to your letter of February 25, 1994 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 from purchasing property from the School District located within the Township. Facts: You are Solicitor for Canton Township, Washington County. The Chairman of the Board of Supervisors, Michael Kopko, directed you to obtain this advisory concerning a possible conflict of interest in connection with purchasing an elementary school located within Canton Township. The Trinity Area School District, which includes Canton Township, recently constructed a number of new elementary schools. As a result, the district is selling old elementary schools through public auction. Approximately one year ago, the Board of Supervisors commenced a plan to promote and expand the township building. The Township Engineer prepared specification and, to date, about $15,000.00 has been spent on the project. In January, 1994, a new board member took office. This individual was supported by a group of citizens that has been encouraging the Board to abandon the expansion and renovation project and purchase an elementary school that is for sale. At a Board meeting about one month ago, this new member made an motion to purchase the schools however, the motion failed due to the lack Petit, John C., Esquire, 94 -532 = cF2 °P`' March 25, 1994 Page 2 of a second on the motion. After that meeting, a bid was let for earth removal regarding the expansion project, which project is now in progress. Mr. Kopko is a contractor. He previously purchased an elementary school in the Trinity Area School District. He has also purchased an elementary school in the Washington School District. Mr. Kopko has expressed an interest in purchasing the school currently for sale which school is the one the group of citizens had encouraged the Board to purchase. You state that you advised Mr. Kopko that if the Township passed the motion to actively attempt to purchase the building, it would be a conflict for him to bid on the building for his personal use. In this case, however, since the motion to purchase the school failed to even receive a second, and the majority of the board has proceeded with the renovation and expansion project, you have advised Mr. Kopko that there is no conflict and he may take whatever steps he deems necessary to purchase the school. Based upon the above, you request an advisory from the State Ethics Commission as to whether a conflict of interest exists under the Ethics Law regarding Mr. Kopko's purchase of the elementary school. 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.'- 5S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Canton Township, Washington County, Mr,. Michael Kopko is a public official as that term is defined under the Ethics Law, and hence he is 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. Petit, John C., Esquire, 94 -532 r- March 25, 1994 Page 3 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 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 Petit, John C., Esquire, 94 -532 March 25, 1994 Page 4 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. 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. 65 P.S. 5403(f). Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of the law would require that an open and public process must be used in all situations where a public official /employee is otherwise Petit, John C., Esquire, 94 -532 March 25, 1994 Page 5 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 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 Petit, John C., Esquire, 94 -532 March 25, 1994 Page 6 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. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, ,7uliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the Ethics Law to this case, it is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public official from using the authority of public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. Here, there does not appear to be any real possibility of an inherent conflict or a private pecuniary benefit inuring to Mr. Kopko, a member of his immediate family or a business with which he or a member of his immediate family is associated merely because he is a Supervisor for a township that is within the School District. Thus, he would not have a conflict of interest in connection with purchasing the school property. It is further noted that the school district and the township Petit, John C., Esquire, 94 -532 March 25, 1994 Page 7 are separate governmental bodies. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, it must be concluded that the governmental body with which Mr. Kopko is associated is the Canton Township, not the Trinity Area School District. This conclusion is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Since Canton Township is a separate and distinct governmental body, not associated with or related to the Trinity Area School District in any manner, for purposes of applying the Ethics Law to this case, and since Mr. Kopko's governmental body is the township and not the School District, the restrictions set forth above as to Section 3(a), 3(f) and 3(j) of the Ethics Law would not apply if Mr. Kopko would contract to purchase the school property. Under the provisions of Section 3(a), 3(f) and 3(j) of the Ethics Law, as a member of the Board of Supervisors for Canton Township, he would not be precluded from purchasing property from the school district. 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: As a Supervisor for Canton Township, Washington County, Michael Kopko is a public official subject to the provisions of the Ethics Law. Under the Ethics Law he would not be precluded in his bidding to purchase property from the Trinity Area School District subject to the qualifications noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. such. foltre Petit, John C., Esquire, 94 -532 March 25, 1994 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 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 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 be actually received at the Commission within fifteen (15) days of the date of this 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). Vincent. J. Dopko Chief Counsel