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HomeMy WebLinkAbout94-543 KemperWilliam D. Kemper, Esquire 209 Diamond Street West Butler, PA 16001 -5712 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 7, 1994 94 -543 Re: Conflict, Public Official /Employee, Township Supervisor, Volunteer Fire Department, Use of Authority of Office or Confidential Information, Private Business, Auto Body Repair Shop. Dear Mr. Kemper: This responds to your letter of February 10, 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 who operates an auto body repair shop from contracting to do work for a volunteer fire department. Facts: You are Solicitor for Center Township, Butler County. Township Supervisor Dean E. Schweinsberg, who has authorized you to obtain this advisory, operates an auto body repair shop. A volunteer fire department within Center Township, the Unionville Volunteer Fire Department (Department), has requested Mr. Schweinsberg to perform auto body work on its trucks. The Department is a independent volunteer fire department not associated with Center Township except that Center Township assesses a 1.5 mill fire tax each year which goes to the Department. The Township holds the tax revenues and pays them to the Department as requested. The Township Supervisors have no input as to how the funds are used, they are not involved in the operation of the Department, nor do they have any discretion regarding the payment of the taxes to the Department. Based upon the above, you request an advisory from the State Ethics Commission as to whether Mr. Schweinsberg may perform work for the Department without violating the Ethics Law. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories Kemper, William D., 94 -543 April 7, 1994 Page 2 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. As a Supervisor for Center Township, Butler County, he 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. 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 Kemper, William D., 94 -543 April 7, 1994 Page 3 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 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. . "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. 65 P.S. 5402. •. 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 Kemper, William D., 94 -543 April 7, 1994 Page 4 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 as follows: 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. S403(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 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 Kemper, William D., 94 -543 April 7, 1994 Page 5 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 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 Kemper, William D., 94 -543 April 7, 1994 Page 6 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. ,egg, Mlakar, Advice 91- 523 -S. In applying the Ethics Law to this case, it is noted that the Ethics Law 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 business with which the public official or a member of his immediate family is associated. It is clear that the auto body repair business is a business with which Mr. Schweinsberg is associated. The answer to your inquiry is dependent upon the nature of the Department; that is, whether the Fire Department is a part of the Township or a separate and distinct entity apart from the Township. Section 3(a) does not prohibit a public official from contracting with his governmental body. However, if the Department is part of the Township, then the proposed work would actually be work for the township and the provisions of Section 3(f) and 3(j) must be followed. In this case, however, you have factually stated that the Department is separate and distinct from the Township. Based upon that factual assumption, there• does not 'appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Schweinsberg were to perform auto body repair work for the Department. The main prohibition under the Ethics Law and opinions of the Ethics Commission is that one may not serve the interests of two persons, groups or entities whose interests maybe inherently-adverse. Smith, Opinion 89 -010. In this situation, Mr. Schweinsberg would not be serving entities with interests which are inherently adverse to each other. Again, this conclusion is expressly-conditioned upon the assumption that the Township and the Department are separate and distinct entities. 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. Kemper, William D., 94 -543 April 7, 1994 Page 7 Conclusion: As a Supervisor for Center Township, Butler Country, Mr. Schweinsberg is a public official subject to the provisions of the Ethics Law. As a public official, the Ethics Law would not prohibit him from performing work for the Unionville Volunteer Fire Department. If the Department is part of the Township, the Ethics Law would not prohibit Mr. Schweinsberg from contracting to do work for the Department, however, the restrictions of Sections 3(f) and 3(j) would have to be followed as set forth above. Since it is factually assumed that the Department and the Township are separate and distinct entities, Sections 3(f) and 3(j) would not be applicable. 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. such. 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). (Sincerely, L k i\ fx � Vincent ' . Dopko Chief Counsel