HomeMy WebLinkAbout79-061 LevinTO:
RE:
FACTS:
OPINION
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
October 1979
79 -061
Suzanne M. Elder
Booher & Elder, Accountants
115 West Market Street
Lewistown, PA 17044
School board member spouse of member of accounting
firm whose services are contracted by school
board, Section 3(c)
Norman L. Levin, Solicitor
Brugler & Levine
10 South Wayne Street
Lewistown, PA 17044
On August 2, 1979, Norman L. Levine, Solicitor for
the Mifflin County School District, wrote this Commission
requesting a response as to the proper interpretation
of Section 3(c) of Act 170.
He advised that a contract was drawn for a term
"commencing July 1, 1978, and ending June 30, 1979, and
continuing annually thereafter unless terminated by
School District or Tax Collector by a ninety (90) day
written notice." He further advised that one of the
elected school directors serving on the board is also a
spouse of one of the two partners in a public account-
ing firm acting as tax collector.
He inquired as to whether the contractual arrange-
ment arrangement must be opened up and publicly rebid
annually as long as the relationship between the
contracting principal and the school board exists,
pursuant to Section 3(c) of Act 170.
On August 13, Suzanne M. Elder wrote the Commission
advising that the existing contract was advertised for
public bid in the local paper.
She asked, "Does this contract that we have need to
be bid each and every year since 1 am the wife of a
school director ?"
On October 17, Mrs. Elder advised the Commission
orally that there were seven closed bids for services
and six of the bidders were present at the bid opening
0
Norman L. Levin &
Suzanne M. Elder
October 17, 1979
page 2 of 3
She further advised that her husband was one of
nine school directors.
DISCUSSION:
The issue before the Commission is whether a
contract with an automatic renewal clause must be
renewed through an open and public process, including
pior public notice and subsequent public disclosure of
all proposals considered and contracts awarded.
Section 3(c) requires that contracts be awarded
through an open and public process where the "public
employee" or "public official" in the governmental body
is a director, officer, owner or holder of stock exceeding
5% of the equity at fair market value of the business.
Although the original awarding of the contract was
in compliance with Section 3(c), does Section 3(c)
require annual rebidding, or may the annual renewal
clause be given effect?
We note that the renewal clause of the contract
allows the school directors to demand that -the contract
be rebid each and every year. We do not find that one
person out of nine on a school board constitutes control
of the board.
Act 170 in no way bars the school board from
adopting nor requiring the contract be rebid each and
every year where the spouse of the school director has
interests in the bid. However, Act 170 does not
require an annual rebidding of the contract where the
contractor's wife is on the school board.
Pursuant to Section 7(9)(i), this opinion 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.
Noriman L. Levin &
5utbnne M. Elder
October 17, 1979
page 3 of 3
CONCLUSION:
where one of the principals in a firm contracting
with a school district is a spouse of an elected school
board member and either party to the contract may
terminate within 90 days of the annual renewal date,
Act 170 does not require annual rebidding of the contract.
Chairman