HomeMy WebLinkAbout89-023 BrooksDear Mr. Brooks:
1989.
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Helena G. Hughes, Chair
Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Michael J. Washo
DATE DECIDED: October 26, 1989
DATE MAILED: November 8. 1989
W. Theodore Brooks
Tucker Arensberg, P.C.
Attorneys at Law
1200 Pittsburgh National Building
Pittsburgh, PA 15222
II. Factual Basis for Determination:
89 - 023
Re: Conflict, Public Official, School Director, Employee,
Architectural Firm, Construction Project, Project Manager,
Contracting.
This Opinion is issued in response to your request of August 29,
Whether the Public Official and Employee Ethics Law imposes any
restrictions upon a school director, voting on the final scope of a
construction project, participating in job conferences relating to
contractors or an architectural firm or voting to approve the payment
of bills when said director is employed by an architectural firm which
serves as a project manager for the school building construction
project.
You represent a school district which is engaged in a seven
million dollar school building project financed by general obligation
bonds. On January 17, 1989 the district voted to hire an
architectural firm as project architect at a fee equal to six percent
of the project cost. On May 4, 1989 the board voted to retain the
services of the same architectural firm as the project manager for a
fee equal to six percent of the total construction cost. The project
W. Theodore Brooks
Page 2
manager replaces the general contractor and has total responsibility
for the project and oversees the performance of the various
contractors such as the plumbers, electricians, excavators, masons and
others.
On July 10, 1989 this architectural firm hired a member of the
board of school directors as an employee. The school board member is
not an architect but is experienced in building, carpentry and other
construction work. Specifically, the board member was hired to act as
coordinator for the on- the -job supervisors on projects other than the
project in his home school district. The final scope of the project
in the school district has not yet been determined by the school board
and alternatives are being considered which could expand the scope of
the project resulting in a higher fee to the architectural firm.
You have listed the duties and responsibilities of this employee
as follows:
1. Conduct weekly contractor coordination meetings,
issue minutes of these meetings.
2. Review contractors shop drawings and /or catalog
for conformance to contract requirements.
3. Conduct on site review of all ongoing construction and
record findings.
4. Review architects work and drawings and specifications prior
to bidding for conformance to sound construction practices
and coordination of trades.
5. Assist architect in preparing various bidding packages.
You ask whether the school board member may vote on matters
related to the school district project, whether he may participate in
job conferences or meetings wherein the performance of contractors or
the architect is discussed and finally whether he may vote on the
payment of bills to the contractors and /or the architectural firm.
III. Discussion:
The school board member is 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, he is subject to the provisions of
the Ethics Law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
edit and
submittals
W. Theodore Brooks
Page 3
(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 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.
"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.
"Authority of office or employment." The
actual power provided bylaw, the exercise of
which is necessary to the performance of duties
and responsibilities unique to a particular public
office or position of public employment.
"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.
"Contract." An agreement or arrangement for
the acquisition, use or disposal by the
Commonwealth or a political subdivision of
consulting or other services or of supplies,
materials, equipment, land or other personal or
real property. "Contract" shall not mean an
agreement or arrangement between the State or
political subdivision as one party and a public
official or public employee as the other party,
concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or
other matters in consideration of his current
W. Theodore Brooks
Page 4
public employment with the °Crsmmonwealthl' of a/
political subdivision:
In addition, Sections 3(b) and (c) provide in part that no person
shall offer to a public •of f idial /employee anything- -- bf , monetary • valeta
and no public official /employee :tsh&11 solicitor accept .anythi it of
monetary value based' on'theZlInaef Standing -that the °= vote - official' =`i
action, or judgment of'- therpublic office altempioyee would be
inf luenced thereby.. j • w u x. ° ter:
Section 3(fyof °the: provides:".'
•
No publi ,offic altot =,employee °or his
spouse or child or any business in which the
person or'hi'sr spouse or child "it associated shall
°enter into any contract valued at $500 or more
with the governmental body with which the public
official or :public• .employee isr ssodiated et' any
subcbntracttvalued at $500 or with any person
who has been awarded a contract with the
governmental - body eith' which'- the public= official '
or employee assodiated ulless-'the
contract has been awarded through an open and
publie prOftess including`priorkloublic notice"and
subsequent = pubic disclosure of all proposals
considered and contracts awarded. In such a
case } ~!Ithe"p bli officiai' or pUblia=emploiyee::::
shall . norl hazier any' supervisory or<:overail
responsibility for the_ implementation or
administration of the contract. Any contract or
sibcontract made in- violati on ofothis stibsect4op..c
shall be voidable by a court of competent
JU:tisdicitIon'af thecsuitcis. comimtenced within 98 matt
el daya^of the making o'f phe 3ontract"br , :p.
Geneial.ly, th .Etflit r s- Law :world ) .nut restrictc=a spht'ol director
ftoYmnbeing employed•. bpi' a pslvatetbusiness. However; the school
director could not use the authority of his office or any confidential
information obtained through such position in order to secure a
private pecuniary benefit for himself or the architectural firm by
which ffe is employed =and with whitvh phe .is ast ociated
/3 ? In`tapp1yi mg• the abbVe proviSions law ``to`- the"s"peti ic'r questions
yo f p4' ,= the'school board director could not vote or participate in
determining the scope of the roject. Such voting on the scope of the
pro ject"wbiild affect the'tbta1 coif- wRIOX1ifi turn would directly
affect the amount of the fee to which his employer, the architectural
firm, would be entitled: p O.o?tifig 'off.' participating on the scope
of the project is prohibited because it would have a direct pecuniary
impact upon the business with which the school director is associated.
W. Theodore Brooks
Page 5
In this regard, the director would also be restricted from voting upon
the issue of the financing of the school building .project.
As to your second inquiry concerning the participation of the
school director in conferences concerning matters where the
performance of contractors or the architect is discussed, he would be
precluded from such action by the Ethics Law. In this case, the
school director would have a conflict between upholding the public
interest in his capacity as school director and with supporting the
architectural firm wherein he is employed. That is, as a school
director this person should obviously be primarily concerned with
ensuring that the contractors including the firm with which he is
associated, perform in a satisfactory and competent manner. As an
employee of the firm his first priority is the well being of his
employer. Thus, there is a clear conflict. As such he may not in his
official position participate to any extent in matters of that type.
However, the school director may vote on the payment of bills to
the contractors where the bills are not contested. Since the school
director would be precluded from participation in matters which would
have a financial impact upon the architectural firm, the payment of
the uncontested bills would not create a conflict. Thus, the concerns
addressed by Section 3(a) are present at the stages involving the
scope of the project or the performance of the parties but not at the
stage where payment is requested for uncontested bills.
Section 3(f) of the Ethics Law also has application to this case
because the situation exists where a public official or a business
with which he associated seeks to enter into a contract c!r
subcontract valued at $500 or more with his government body.. Section
3(f) requires in part that such contracts must occur through an open
and public process. In the instant matter, the architectural firm is
a business with which the school director is associated. Therefore,
before any contracts with the architectural firm may be awarded, such
contracting must occur through an open and public process, including
prior public notice and subsequent public disclosure of all proposals
considered and contracts awarded. In addition Section 3(f) restricts
public officials who contract with their governmental body from any
supervisory . or - overall responsibility as to the contract.
In light of the conflict by the school director concerning the
architectural firm, Section 3(j) of the Ethics Law would require him
to abstain and publicly announce and disclose the nature of his
interest in a memorandum filed with the person responsible for
recording the minutes.
Lastly, the propriety of the proposed conduct has been addressed
only under the Ethics Law; the applicability of any other statute,
code, ordinance, regulation or other code of conduct other than the
Ethics Law have not been considered in that they do not involve an
W. Theodore Brooks
Page 6
interpretation of the Ethics Law. Specifically not addressed is the
applicability of the Public School Code.
IV. Conclusion:
A school director is a public official subject to the provisions
of the Ethics Law. A school director employed by an architectural
firm which is project manager for a school building construction
project, is associated with that business under the provisions of the
Ethics Law. The Ethics Law would prohibit the school director from
voting on the scope of the construction project because such would
have a pecuniary impact upon the fee of his employer. In addition,
he would be precluded from voting upon the matter of the financing of
the school building project. Similarly, he could not participate in
meetings concerning the job performance of contractors or the
architectural firm but could vote on the payment of uncontested
bills. Section 3(j) would require him to publicly announce and
disclose the nature of his interest in a memorandum filed with the
person responsible for recording the minutes.
In addition, Section 3(f) of the Ethics Law would require an open
and public process as to contracts between the architectural firm and
the school district when the contract is valued at $500 or more. In
addition, the school director could not have any supervisory or
overall responsibility as to the contract. Lastly, the propriety of
the proposed conduct has been addressed only 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 on 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.
By t - Commissio
elena G. Hughes
Chair