HomeMy WebLinkAbout99-561 HoffmanEarl B. Hoffman, Sr.
Hoffman Fordland
5200 Jonestown Road
Harrisburg, PA 17112
Dear Mr. Hoffman:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
June 18, 1999
Re: Conflict; Public Official /Employee; Supervisor; Township; Municipal Authority;
Business; Business with which Associated; Automobile; Truck; Purchase;
Contract; Sale.
This responds to your letter by which you requested advice from the State
Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 gt sgq., presents any prohibition or restrictions upon a supervisor as
to the sale of a truck by the business with which he is associated to a municipal
authority.
Facts: You are a supervisor in West Hanover Township. The West Hanover
Township Water and Sewer Authority (Authority) has approached your automobile
dealership, Hoffman Fordland, relative to purchasing a pick -up truck through the
Pennsylvania Department of General Services Cooperative Purchasing program. The
Authority is a separate body politic, an arm of the Commonwealth, constituted under
the provisions of the Municipal Authorities Act of 1945, as amended. The Board of
Supervisors has no input into the administration and operation of the Authority which
you believe does not have to request bids for this purchase.
You inquire as to whether the sale of the truck by Hoffman Fordland to the
Authority would constitute a conflict of interest since you are a member of the Board
of Supervisors.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (11).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us
99 -561
Hoffman, 99 -561
June 18, 1999
Page 2
It is further noted that, pursuant to Sections 1107(10) and (1 1) of the Ethics
Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may given only as to prospective
(future) conduct. If the activity in question has already occurred, the Commission may
not issue an opinion /advice, but any person may then submit a signed and sworn
complaint which will be investigated by the Commission if there are allegations of
Ethics Act violations by a person who is subject to the Ethics Act. To the extent you
have inquired as to conduct which has already occurred, such past conduct may not
be addressed in the context of an advisory opinion. However, to the extent you have
inquired as to future conduct, your inquiry may, and shall be addressed.
As Supervisor for West Hanover Township, you are a public official as that term
is defined in the Ethics Act, and hence you are subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1 103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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.
It is generally noted that a conflict of interest exists where a public official /public
employee, in his official capacity, participates, reviews or passes upon a matter
involving a business with which he is associated and /or private clients. Miller, Opinion
No. 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a
conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder,
Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996),
alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). The
State Ethics Commission has also held that it is a conflict of interest under Section
1 103(a) for a public official /public employee to pursue a private business opportunity
in the course of public action. Metrick, Order No. 1037.
65 Pa.C.S. §1102.
Hoffman, 99 -561
June 18, 1999
Page 3
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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.
In this case, assuming that there are no improper understandings use or
authority of office, you as a supervisor would not have a conflict as to the purchase
of a truck by the Authority from Hoffman Fordland through the General Services
Cooperative Purchasing Program.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: As Supervisor for West Hanover Township, you are a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Aet "),
65 Pa.C.S. § 1 101. In this case, assuming that there are no improper
understandings or use of authority of office, you as a supervisor would not have a
conflict as to the purchase of a truck by the Authority from Hoffman Fordland through
the General Services Cooperative Purchasing Program. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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.
S c - rely,
Vincent w Dopko
Chief Counsel