Loading...
HomeMy WebLinkAbout82-004 CantorSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 19, 1982 OPINION OF THE COMMISSION Mr. Andrew B. Cantor Wisler, Pearlstine, Talone, Craig & Garrity 515 Swede Street Norristown, PA 19401 RE: Professional Association; Township Supervisor and Township Solicitor Dear Mr. Cantor: I Issue: 82 -004 Does the Ethics Act preclude or limit a Township Super- visor from associating for the practice of law with the Township Solicitor? II. Factual Basis for Determination: The Chairman of the Board of Township Supervisors whom you represent is an attorney. The Supervisor desires to form an association for the practice of law, distinct from his position as Supervisor, with the attorney who is presently Township Solicitor for the Supervisor's Township. The Solicitor accepted his appointment to that position prior to any contemplation of association between the two parties. You question the propriety of such an association in light of the State Ethics Act. You also address the possible effect of the Supervisor's abstaining from voting on certain matters of interest to the Solicitor, such as litigation or activities which would increase the latter's fees, as well as abstaining from participating in all future appointments of the Township Solicitor. III. Applicable Law: The Law to be applied to this question is as follows: Section 3(a), (c) Restricted Activities. (a) No public official or public employee shall use his public Andrew B. Cantor April 19, 1982 Page 2 office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body 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. Any contract made in violation of this subsection shall be voidable by court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. Section 1 Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have the right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the Andrew B. Cantor April 19, 1982 Page 3 IV. Discussion: people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. The Ethics Act applies generally to elected and appointed officials and thus Township Supervisors are "public officials" as defined by the Ethics Act. 65 P.S. Section 402. As a public official, a Supervisor must present "neither a conflict nor the appearance of a conflict with the public trust -" 65 P.S. Section 401. The Ethics Act does not per se preclude the possibility that a public official (Supervisor) may have a business or professional relationship with an appointee (Solicitor) of the Board. However, wherever the official (Supervisor) or any business in which he is an owner, director or holder of stock (5% or more at fair market value) seeks to contract with the official's governmental body (here, the Township), that contract must comport with the open and public require- ments of Section 3(c) of the Ethics Act cited above. In holding the "open and public" provisions of Section 3(c) of the Ethics Act applicable to personal services contracts such as that between the municipality and its solicitor, we realize that these contracts under the circum- stances described in Section 3(c) may have to be handled differently from the usual requirements of your municipal code. Typically, municipal codes exempt "personal" or "professional" services from their "bidding" requirements. See Borough Code at 53 P.S. 46402(d)(5); City Codes, 53 P.S. 12671 (1st Class), 53 P.S. 23308.1 (2nd Class), and 53 P.S. 36901(d)(5) (3rd Class); Incorporated Towns, 53 P.S. 53202(d)(5); and Township Codes, 53 P.S. 56802(d) (1st Class) and 53 P.S. 65802(e)(5) (2nd Class). However, the purpose for these exceptions has generally been to free the municipality from mandatory acceptance of the lowest "bidder." Commonwealth v. Tice, 272 Pa. 447(1922). The purpose of this exception from "bidding" requirements is manifestly different from the purpose of the Ethics Act in general and Section 3(c) of the Ethics Act in particular. The purpose of the Ethics Act, as expressed in Section 1 of the Ethics Act is to strengthen the faith of the public in their government. Section 3(c), in this case, requires an open and public process in the award of contracts by a municipality to its own public employees /officials, their wives, etc. It is obvious that adherence to the open /public process of Section 3(c), if applied to personal /professional Andrew B. Cantor April 19, 1982 Page 4 contracts, as well as to contracts for goods, will help alleviate the fear that "insiders" (public employees /officials, their wives and businesses) are "favored" in such employment. Given the fact that the Legislature clearly demonstrated an ability to write exceptions for personal /professional services contracts in other codes and did not do so in the Ethics Act, we must conclude that application of Section 3(c) to such contracts was intended by the Legislature.. Applying Section 3(c) to such contracts effects the clear language of the Ethics Act as well'as implementing its purpose. In this interpretation and application we do not imply or find a requirement in Section 3(c) that the formal bid process with legal advertisements, etc. is required. Nor do we find that the municipality, in such circumstances, would be obligated, after the open /public process, to award the contract to the lowest "bidder ". Compare American Totalisator Co. v. Seligman, 27 Pa. Cmwlth. 639(1976). As stated previously by this Commission, a "reasonableness" test is to be applied in determining whether the open /public requirements of Section 3(c) have been met. Howard, 79 -044. Thus, before a public employee /official, his immediate family or business as described in Section 3(c) is awarded a personal /professional contract by the municipality he /she serves, there must be: (1) prior public notice of the contract possibility; (2) sufficient time for a reasonable and prudent competitor to be able to prepare and submit a proposal /application; (3) public disclosure of all proposals /applications considered; and (4) public disclosure of the contract awarded or offered /accepted. The Act also states that no public official shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself or for a business with which he is associated. 65 P.S. Section 403(a). Also, the Act prohibits a public official from accepting anything of value, including the promise of future employment for himself or a business with which he is associated with the understanding that the official's conduct would be influenced thereby. 65 P.S. 403(b). Should the Supervisor join a fellow attorney in an association to practice law, the association would be "a business with which he is associated" as defined in Section 3(a) or 3(b). See 65 P.S. 402 (definitions) Andrew B. Cantor April 19, 1982 Page 5 The Township Board of Supervisors to which you refer appoints the Township Solicitor and decides matters that may, directly or indirectly, result in an increase in payments or fees to the Township Solicitor. Should the Solicitor be the attorney with whom the Supervisor associates, participation by the Supervisor in Board decisions about the Solicitor present at least the appearance of a potential conflict of interest. Such an appearance would violate Section 1 of the Ethics Act. The possibility that the Solicitor's compensation would be commingled with the assets of the Supervisor - Attorney also suggests a violation of Section 3 (a) . The Supervisor can avoid the appearance of a conflict of interest or impropriety by abstaining from voting on the Supervisors' decisions dealing with its Solicitor. This would include abstention from decisions relating to liti- gation or activities that would result in an increase in fees to the partner /associate- Solicitor. It would also include abstention from future appointments of the Solicitor as long as the Supervisor's professional association with the incumbent Solicitor continued and the incumbent solicitor is seeking re- appointment. V. Conclusion: If a Supervisor is also associated with the Solicitor in a private business (law practice), participation by the Supervisor in the appointment or re- appointment of the solicitor and on matters pertaining to decisions which would result in an increase of fees /payments to the Solicitor presents the appearance of a conflict of interest to be avoided under the Ethics Act. Thus, the Supervisor must abstain from participating in those and similar matters as long as his private business association with the Solicitor continues. In this case, the contract in excess of $500 between the Supervisor and the business with which he is associated must be awarded only after compliance with Section 3(c) of the Ethics Act. 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 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. Andrew B. Cantor April 19, 1982 Page 6 This letter is public record and will be made available as such. PJS /na 7--) PAUL J.IITH Chairma