HomeMy WebLinkAbout85-002 TrottaMr. Vincent P. Trotta
Associate Vice President for
Finance and Administration
Edinboro University of Pennsylvania
Edinboro, PA 16444
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
February 27, 1985
OPINION OF THE COMMISSION
Re: Discount Program; Section 3(b) of the Ethics Act
Dear Mr. Trotta:
85-002
This responds to your request for advice from the State Ethics
Commission.
Issue: Whether Edinboro University may, within the purview of the Ethics Act,
enter into an employee computer purchase discount program with the company
from which the University purchased the computer equipment currently used by
the University.
Facts: You have requested the opinion of the State Ethics Commission on
behalf of Edinboro University of Pennsylvania, hereinafter, University. In
October, 1983, the University purchased a computer mainframe from Digital
Equipment Corporation, (DEC). This purchase was accomplished after the
issuance of requests for proposals and the evaluation of the proposals
received. The Pennsylvania Department of Education supplied the University
with data processing specialists who assisted in preparing the requests and in
evaluating the proposals. The final decision on the purchase was made by the
University.
Sometime, thereafter, DEC offered the University the opportunity to
participate in a corporate employee personal computer purchase program. •
Pursuant to this program, University employees would be able to purchase DEC
personal computer equipment at a discount from authorized DEC retail outlets.
The entire transaction is managed by the retail outlet of the employees
choice. The proposed program would be available to all University employees.
Mr. Vincent P. Trotta
February 27, 1 985
Page 2
The original 1983 request for the submission of proposals by the
University did not include a request for any type of employee discounts.
Additionally, the final purchase contract did not include an opportunity for
employee discounts. You have also informed the Commission that the University
officials making the DEC acquisition decision were neither promised nor
offered employee or any other type of personal discount. Finally, you
indicate that such discount programs are a common marketing practice of other
computer companies.
Discussion: At the outset it must be noted that the Commission has ruled that
officials and employees of institutions comprising the State system of Higher
Education, unless otherwise exempted under the law, are public officials and
public employees subject to the provisions of the Ethics Act. See; Opinion
No. 85 -001, Weiss. As such, the advice rendered herein would be applicable to
any employee /official not otherwise exempted.
The Ethics Act provides that:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
A personal "discount" clearly must be considered a "thing of value"
within the meaning of Section 3(b) of the Act. If such a personal discount is
offered to a public official or public employee in order to influence that
person's official decision regarding a purchase, a violation of this Section
would occur.
The Commission has previously advised in a similar situation that in
order to insure that such a discount is not being used to influence the
official judgement of the purchaser, that any use or offer of the discount
must be made in conjunction with an open and public process as described in
Section 403(c) of the Ethics Act. This process includes public notice of the
purchase from which the discount stems as well as public disclosure of all
proposals or offers considered and contracts awarded. See Advice No. 82 -531,
Smith.
Mr. Vincent P. Trotta
February 27, 1985
Page 3
It should he noted that the discount program employed in the above
mentioned situation was offered in advance of the decision to award the
purchase contract. In the present situation, however, the program has been
offered approximately one year after the purchase of the canputer mainframe.
Additionally, there was no offer or mention of such discount at the time of
the proposal submissions to the University. Another factor present in the
current situation is that all proposals were reviewed and evaluated by an
independent group of advisors from the Department of Education, with final
recommendations resulting therefrom. The Discount program has not been
offered solely to the individuals who made the final contract decision, but to
all employees of the University. Based upon the foregoing factual analysis,
there would be no violation of Section 403(b) of the Ethics Act if the
employee discount program is implemented. This result is based upon the
aforementioned facts, and under different circumstances certain guidelines, as
previously noted, should be followed.
The Ethics Act also provides that public officials and public employees
must also avoid any conflict of interest or the appearance of a conflict of
interest. 65 P.S. § §401; 403(d). This provision is particularly applicable
in the situation where the individual who is responsible for the award of the
purchase contract partakes in the benefit of the discount program. In such
situations, especially where the decision maker is aware of such program in
advance of the decision, a conflict or appearance of such may exist. It may
be better advised under such circumstances for the individual to either forego
participation in the program or to abstain from the contract award process.
In any event, this issue need not be decided now, in that under the facts
herein present there would be neither a conflict nor the appearance thereof,
even as applied to the officials who awarded the contract.
Conclusion: There is no per se violation of the provisions of the Ethics Act
in the implementation by Edinboro University of Pennsylvania of an employee
computer purchase discount program offered by the company from which the
University awarded the computer equipment utilized by the University.
Additionally, the Commission would like to commend Mr. Trotta for presenting
this important issue to the Commission.
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 of the advice given.
Mr. Vincent P. Trotta
February 27, 1985
Page 4
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting reconside-
ration should present a detailed explanation setting forth the reasons why the
opinion requires reconsideration.
JJC /sfd
By the Commission
/HERBER B. CONNED
Chairman