HomeMy WebLinkAbout89-008 OHaraMr. Robert J. O'Hara, Jr.
2336 S. Pewter Drive
Macungie, PA 18062
Dear Mr. O'Hara:
1989.
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Helena G. Hughes, Chair
W. Thomas Andrews
G. Sieber Pancoast
Dennis C. Harrington
Michael J. Washo
DATE DECIDED: July 28. 1989
DATE MAILED: A11E9 Tar ft_ 1989
89 -008
Re: Conflict, State University Trustee, Public Official, Rental of
Buildings to a Different State University
This Opinion is issued in response to your request of June 26,
Whether a trustee of a State University under the Public Official
and Employee Ethics Law may invest in the construction and rental of
buildings to a different State University following negotiations with
that State University or the Commonwealth.
II. Factual Basis for Determination:
You serve on the Council of Trustees of East Stroudsburg
University. Since you invest in various properties in the Lehigh
Valley, you are considering the possibility of investing in the
construction and rental of dormitory buildings for Kutztown
University which may ultimately result in negotiations with Kutztown
University and the Commonwealth. It is possible that the
negotiations may even result in the leasing of Commonwealth property.
You note that you would not be dealing with East Stroudsburg in
any way regarding this business property but you would be involved
with some entities in the State System of Higher Education. You
request an advisory of this Commission as to whether a conflict would
exist prior to engaging in this business activity.
Mr. Robert J. O'Hara, Jr.
Page 2
III. Discussion:
As a Trustee for East Stroudsburg University, you are a public
official as that term is defined under the Public Official and
Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you
are subject to the provisions of the Ethics Law and the restrictions
therein are applicable to you.
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 under the Ethics Law:
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 informationreceived 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 or his immediate family or a
business with which he or a member of his
immediate family is associated.
"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.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of duties
and responsibilities unique to a particular public
office or position of public employment.
Mr. Robert J. O'Hara, Jr.
Page 3
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within State
government or a political subdivision by which the
public official or employee is or has been .
employed or to which the public official or
employee is or has been appointed or elected and
subdivisions and offices within that governmental
body.
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 or no public official /employee shall solicit or
accept any thing of monetary value based upon the understanding that
the vote, official action, or judgement of the public
official /employee would be influenced thereby.
Finally, section 3(f) of the Ethics Law imposes restrictions upon
a public official /employee who seeks to contract with his governmental
body:
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
Mr. Robert J. O'Hara, Jr.
Page 4
of the contract or subcontract.
In applying the above provisions of law to the instant matter,
Section 3(a) of the Ethics Law would not preclude you or a business
with which you are associated from entering into the business activity
of investing in the construction or the rental of dormitory buildings
for Kutztown University. Although the Ethics Law does not preclude a
public official /employee from outside business activities, Section
3(a) of the Ethics Law does prohibit public officials /employees from
using the authority of office or confidential information for the
advancement of their own personal financial gain. As is noted in the
Preamble of the Ethics Law:
"... public office is public trust and ... any
effort to realize personal financial gain through
public office other than compensation provided by
law is a violation of that trust."
Subject to the foregoing qualification, Section 3(a) of the
Ethics Law would not prohibit you or the business with which you are
associated from entering into a lease agreement for the rental of
dormitory buildings for Kutztown University.
However, under Section 3(f) of the Ethics Law quoted above, such
leasing arrangement would be a contract between you or the business
with which you are associated and the governmental body with which you
are associated, namely the State System of Higher Education. In this
regard, we note that any contract for the lease of property as to a
State University must be entered into with the Board of Governors of
the State System of Higher Education of which the fourteen enumerated
institutions (including East Stroudsburg and Kutztown) are integral
parts. See 24P.S.S20 - 2003 - A(3). Accordingly, the provisions of
Section 3(f) of the Ethics Law . must be strictly complied with. Since
such a contract would undoubtedly be in excess of $500.00, Section
3(f) would require that the contract, or a sub- contract if applicable,
be awarded through an open and public process including prior public
notice and subsequent public disclosure of all the proposals
considered and contracts awarded. The foregoing provisions of Section
3(f) of the Ethics Law must be adhered to in order for the contracting
to occur. In addition, if the contract proposal is accepted, Section
3(f) of the Ethics Law would also require that you could not have any
supervisory or overall responsibility for the implementation or the
administration of the contract in your capacity as public official.
However, such appears to be unlikely because you are on the Council of
Trustees of East Stroudsburg University and the contract would be for
the rental of dormitory buildings for Kutztown University.
Lastly, 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
Mr. Robert J. O'Hara, Jr.
Page 5
than the Ethics Law has not been considered in that they do not
involve an interpretation of the Ethics Law.
IV. Conclusion:
As Trustee of East Stroudsburg University, you are a public
official subject to the provisions of the Ethics Law. Under Section
3(a) of the Ethics Law, you or a business with which you are
associated would not be precluded from investing in the construction
and rental of buildings to Kutztown State University following
negotiations with that University or the Commonwealth. However, under
Section 3(f) of the Ethics Law, such rental would be a contract and
accordingly, the requirements of Section 3(f) of the Ethics Law must
be satisfied, that is, the contract or any sub- contract must be
awarded through an open and public process including prior public
notice and subsequent public disclosure of all proposals considered
and contracts awarded in excess of $500.00. In addition, if the
contract is awarded, you as trustee could not have any supervisory or
overall responsibility for the implementation or administration of the
contract. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
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 evidence
of the advice given.
This letter is a public record and will be made available as
such.
Finally, any person may request the Commission to reconsider its
Opinion. The reconsideration request must be received at this
Commission within fifteen days of the mailing date of this Opinion.
The person requesting reconsideration should present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
W. Thomas Andrews dissents.
By t Commiss on,
elena G. Hughes
Chair