HomeMy WebLinkAbout98-575 MayerNelson Mayer
Hempfield Township Board of Auditors
RD #6, Box 500
Woodward Dr.
Greensburg, PA 15601
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
July 8, 1998
98 -575
Re: Conflict; Public Official /Employee; Auditor; Township; Second Class; Bid;
Purchase; Copier; Business with which Associated.
Dear Mr. Mayer:
This responds to your letter of June 3, 1998 by 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 auditor whose private business seeks to
submit a bid for the sale of a copier to the township.
Facts: You are a member of the Board of Auditors of Hempfield Township, a
Second Class Township. The Township Supervisors plan to purchase a copier and seek
bids for the contract. As a private business owner, you desire to submit a bid as to the
sale of a copier.
You reference Sections 916 and 1302(i) of the Second Class Township Code
( "Code ") as well as the Center for Local Government Auditors Guide. You indicate that
there is a difference of opinion between you and a Township Supervisor as to whether
the above provisions of the Code allow for such contracting. You appear to argue that
Section 1302(i) of the Code permits such contracting. However, a Township
Supervisor has stated that you would be in violation of the Second Class Township
Code, of which you have attached copies, were you to do so. The opinion of the
Supervisor seems to be based on. Section 916 of the Code, which restricts an auditor
from being directly or indirectly interested financially in any township transaction.
As a Township Auditor, you seek an advisory from the State Ethics Commission
as to whether you may submit a bid as to the sale of a copier to the Township. You
note that the Supervisors and Auditors have agreed that the decision of the
Commission would be binding in resolving the dispute.
FAX : (717) 787 -0806 • Web Site: www.ethics.state.Pa.us • e -mail: sec@state.pa.us
Mayer, 98 -575
July 7, 1998
Page 2
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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
material 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.
As an Auditor for Hempfield Township, you are a public official as that term is
defined in the Public Official and Employee Ethics Law ( "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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"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.
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
Mayer, 98 -575
July 7, 1998
Page 3
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 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.
Section 3(f) does not operate to make contracting with the governmental body
permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the 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, Section 3(f) requires that an
"open and public process" be observed as to the contract with the governmental body.
Pursuant to Section 3(f), an "open and public process" includes:
(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
Mauer, 98 -575
July 7, 1998
Page 4
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.
In each instance of a conflict, 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 applying Section 3(a) to the instant matter, you could not use the authority
of office to advance or ensure the prospect of the Township purchasing the copier
from your business rather than from the other bidders. As a practical matter, since it
will be the decision of the Supervisors to select the winning bid, it does not appear
that Section 3(a) would have application to your situation.
Turning to Section 3(f), if the contract for the copier is $500 or more, the
contracting would have to be done through an open and public process, that is,
through the advertisement for the submission of bids. Section 3(f) does not act to
prohibit contracting but rather sets forth the process that must be followed when
contracting occurs between the public official and his governmental body.
Within the parameters of the Ethics Law noted above, you as an Auditor may
submit a bid to sell a copier to the Township. However, the foregoing has only been
considered under the Ethics Law which is the law that this Commission administers.
As to the Second Class Township Code, this Commission does not administer
that law and cannot offer an opinion to resolve a dispute between you and the
Supervisors as to an interpretation of the Code. It is suggested that you consult with
your solicitor or retain private counsel on such issues.
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.
Mayer, 98 -575
July 7, 1998
Page 5
Conclusion: As an Auditor for Hempfield Township, you are a public official
subject to the provisions of the Ethics Law. A second class township auditor, through
his private business, may submit a bid to the township to sell a copier, provided that
the restrictions of Section 3(a) and 3(f) of the Ethics Law outlined above are satisfied.
As to whether such contracting is permitted under the Second Class Township Code,
the advice of the solicitor or private counsel should be obtained. 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 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 thirty (30) 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). Failure to file such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
erely,
Vincent 5Dop 'o
Chief Counsel