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HomeMy WebLinkAbout01-007 RubensteinOPINION OF THE COMMISSION Herbert F. Rubenstein, Esquire Suite 107 25 West Skippack Pike Broad Axe, PA 19002 -5152 Re: Conflict; Public Official /Employee; Township Councilman; Member of Immediate Family; Spouse; Employee; University; Contract; Vote; Private Pecuniary Benefit; De Minimis Exclusion; Class /Subclass Exclusion; Appeal of Advice; Advice of Counsel 01 -544. Dear Mr. Rubenstein: I. ISSUE: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: 9/12/01 DATE MAILED: 9/17/01 This Opinion is issued in response to the appeal of Advice of Counsel 01- 544, which was issued on April 25, 2001. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a township councilman with regard to a proposed contract between the township and a university, where: (1) the councilman's spouse is a secretary employed by the university; and (2) pursuant to the contract, the township would construct a baseball field and related facilities on township property, and the university would pay to the township a rental sufficient to cover a portion of the construction of the field /facilities in exchange for priority use of the field /facilities during the university's baseball practice and playing seasons. II. FACTUAL BASIS FOR DETERMINATION: By fax dated and received May 24, 2001, you timely appealed Rubenstein, Advice of Counsel 01 -544 issued April 25, 2001. 01 -007 Rubenstein, 01 -007 September 17, 2001 Page 2 Facts from initial advisory request letter dated March 22, 2001 In your initial advisory request letter dated March 22, 2001, you provided facts which may be fairly summarized as follows. You represent a member ( "Member ") of a governing body ( "Governing Body ") of a municipality ( "Municipality "). The Governing Body is considering entering into a contract with a university ("University"). The University is a non- profit corporation. Pursuant to the proposed contract, the University would, at its own expense, construct a baseball field and related facilities on lands partially or wholly owned by the Municipality. In exchange for constructing the baseball field /facilities, the University would be permitted to use the field /facilities, on a nonexclusive basis, for baseball practices and games. Ordinarily, the Member would participate in the consideration, discussion, and vote as to such a contract. However, the Member's spouse is employed by the University as a secretary. You acknowledge that the University is a business with which the Member's spouse, an immediate family member, is associated, by virtue of the spouse's employment by the University. However, you state that the spouse is one of 2,252 University employees, 161 of which employees are secretaries. Further, the spouse is one of a large number of secretaries comprising a "secretarial pool" at the University. You state that the spouse does not work for the particular department of the University which would be involved in negotiating the proposed contract. You further state that the spouse is not an officer, director, trustee, or shareholder of the University, and the spouse has no supervisory or advisory responsibilities. You acknowledge that the proposed arrangement would constitute a "contract" as defined by the Ethics Act. You state that issues pertaining to the contract would be the subject of public input. However, you state that the work that the University would perform would not be competitively bid because such work would not involve the expenditure of municipal funds. Based upon the above facts, you posed the following questions: 1. Whether the Member of the Governing Body, in his capacity as a public official, would violate the Ethics Act if he would participate in discussions, deliberations, negotiations and /or decisions of the Governing Body regarding the contract by and between the University and the Municipality under the circumstances described above; 2. Whether the de minimis economic impact exclusion as to conflicts of interest under Section 1103(a) of the Ethics Act would apply, where there would be no economic impact whatsoever upon the Member or the Member's spouse which would in any way [be] dependent on the finalization of the contract by and between the [M]unicipality and the University "; 3. Whether the class /subclass exclusion as to conflicts of interest under Section 1103(a) of the Ethics Act would apply, where the Member's spouse is one of 2,252 employees of the University; is one of 161 secretaries employed by the University; is not in a supervisory or advisory position; is not an officer, director, trustee or shareholder of the University; Rubenstein, 01 -007 September 17, 2001 Page 3 and does not work in the department of the University involved with the proposed contract; and 4. Whether the Municipality and the University may enter into the proposed contract under Section 1103(f) of the Ethics Act, where the contract will be valued at more than $500 and will be awarded through what you describe as an "open and public process" consisting of 'the adoption of an ordinance requiring prior public notice and subsequent public disclosure of all proposals considered and contracts awarded,' and where the Member will not have any supervisory or overall responsibility for the implementation or administration of the contract. (Rubenstein Letter of March 22, 2001, at 2). Determinations and conclusions of Advice of Counsel 01 -544 Advice of Counsel 01 -544 determined that the Member's spouse is a member of his immediate family, and that the University that employs the spouse is a business with which the spouse is associated. The Advice determined that action by the Governing Body permitting the University to build the baseball field /facilities would result in a financial benefit to the University. The Advice concluded that pursuant to Section 1103(a) of the Ethics Act, the Member would have a conflict of interest as to the proposed contract and therefore would be prohibited from participating in discussions, deliberations, negotiations and /or decisions of the Governing Body regarding it. The Advice required the Member to abstain fully as to the matter and to make the necessary disclosures under Section 11030) of the Ethics Act. As to the exclusions to the statutory definition of "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, the Advice concluded that because the Member's conflict of interest would be based upon a pecuniary benefit to the University rather than to the Member's spouse, the de minimis and class /subclass exclusions would not apply under the facts as presented. Based upon your statements that the contract would be awarded through an open and public process and that the Member would not have any supervisory or overall responsibility for the implementation or administration of the contract, the Advice concluded that the proposed contracting between the University and the Governing Body would not be prohibited under the Ethics Act. The Advice recommended that legal advice be obtained as to any problems as to contracting under the respective municipal code. Arguments presented in appeal letter dated May 24, 2001 In your appeal letter of May 24, 2001, you presented the following three arguments. Your first argument is that although the Member's spouse is an employee of the University, she is a secretary, and therefore, she should not be considered an "employee" as that term is used in the Ethics Act's definition of "business with which ... associated." You argue that as a secretary, the Member's spouse is not "on the same level" as other categories listed in the definition. You contend that the meaning of the word "employee" is doubtful, and therefore, such meaning should be construed by referring to the meaning of the words around it. From such premises, you conclude that the term 'employee" should be construed to refer to "managerial or executive employees, or to businesses with only a few employees where personal consequences are likely." (Rubenstein letter of May 24, 2001, at 2). You state, "We wish you to consider whether there might be some point at which the relative importance of the employment Rubenstein, 01 -007 September 17, 2001 Page 4 relationship is so minimal that no conflict is present." Id. You state that the Member's wife's employment relationship is so minimal that no conflict exists for the Member. After referencing Section 1101.1 of the Ethics Act, you state that the Member's spouse's employment with the University provides no motive for the Member to vote for or against the contract in question. You state that the Member will recognize no personal financial gain by voting either way, and that his impartiality and honesty are therefore not compromised. Second, you argue that the pecuniary benefit to the University will not be a "private" pecuniary benefit, but rather will be "remote," since the University will use the baseball field on a non - exclusive basis along with other organizations both inside and outside of the Municipality as well as the general public. As to this issue, you cite Novak, Opinion 91 -009. Third, you argue that by its terms, the class /subclass exclusion may apply where the financial benefit is to a business with which the Member's spouse is associated. You reiterate that the University's use of the baseball field /facilities will be non - exclusive and that other schools, organizations /groups, and the general public will also use the baseball field. Facts and Commentary presented at public meeting of August 24, 2001 At the public meeting on August 24, 2001, you appeared and offered additional facts and commentary, which may be fairly summarized as follows. The University, municipality, and official in question are, respectively, Villanova University, Plymouth Township, and Plymouth Township Councilman Fazzini ( "Fazzini "). Villanova University is geographically located in close proximity to Plymouth Township. Villanova University approached Plymouth Township to develop the proposed baseball field /facilities. Although it was originally conceived that the University would be constructing the baseball field /facilities, and would do so at its own expense without public bidding, those plans have changed. Now the township rather than the University will be doing all of the construction work, and public bidding procedures will be utilized. Pursuant to a lease agreement, the University will pay to the township a "substantial" rental sufficient to cover a portion of the construction of the field /facilities in exchange for priority use of the field /facilities over a long period of time. Specifically, the field will be part of the Plymouth Township Recreation Program. It will be open on a nondiscriminatory basis to anyone, including the public, public and private schools, and business organizations. However, the University will have priority over others to use the field during the fall when the University has practices and during the spring when the University plays games. The University will submit schedules for use of the field /facilities to the Township in advance. During such times as the University's schedule requires use of the field /facilities, the township cannot permit others to use them. Fazzini is an engineer. He works for "Nason and Cullen," a construction management firm. That firm would have nothing to do with this project. However, Fazzini seeks to participate in his capacity as a township councilman as to the project. You argue that Fazzini's participation is especially important because of his engineering background and his experience and expertise in construction, construction management, and cost - cutting. Rubenstein, 01 -007 September 17, 2001 Page 5 As of the August 24, 2001, public meeting, some actions had already been taken by the township as to the project. The lease with the University had been negotiated and approved through the adoption of an ordinance but had not yet been signed. The work had already been publicly bid by the township council, but all of the bids had been rejected as over budget. You state that Fazzini had no input as to the lease negotiations, and he abstained from voting on the ordinance. You state that the township has not yet utilized Fazzini's expertise as an engineer. The township used another engineer to prepare the project plans and specifications. You note the value that Fazzini could have in paring the project down to bring it within budget. You state that if Fazzini may not be used to revise the plans to cut the project costs, a consultant will have to be hired for that as well. As for legal arguments, in addition to restating the arguments set forth in your appeal letter of May 24, 2001, you note that the purpose of the Ethics Act as set forth at 65 Pa.C.S. § 1101.1 recognizes that public officials should not be discouraged from maintaining contacts with the community through their occupations and professions. Our review of this matter is de novo. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthful) ( disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Plymouth Township Councilman Fazzini is a public official subject to the provisions of the Ethics Act. Sections 1103(a), (f), and (j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (f) Contract. - -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 Rubenstein, 01 -007 September 17, 2001 Page 6 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 of the contract or subcontract. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa. C. S. §§ 1103(a), (f), (j). The following terms pertaining to the above provisions are defined in the Ethics Act as follows: § 1102. 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. The term 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 of his Rubenstein, 01 -007 September 17, 2001 Page 7 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 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. The term 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 public employment with the Commonwealth or a political subdivision. 65 Pa. C. S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; Rubenstein, 01 -007 September 17, 2001 Page 8 (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. In applying Sections 1103(a), (f), and (j) of the Ethics Act to the facts which you have submitted, we determine that the proposed contract between Plymouth Township and Villanova University would present a conflict of interest for Fazzini, whose spouse is employed by the University. All of the statutory elements of a conflict of interest would be established under the facts. We first note that it is clear, and you do not contest the fact, that Fazzini's spouse is a member of his immediate family. The statutory definition of "immediate family" as set forth above specifically includes a spouse. Second, based upon the facts which you have submitted, we must conclude as did the Advice that Villanova University is a "business" as defined by the Ethics Act. We take administrative notice of the fact that Villanova University is not part of the State System of Higher Education. Based upon the submitted facts, the Advice correctly concluded that Villanova University is a "business," because it is a corporation, the statutory definition of "business" specifically includes any corporation, and this Commission has previously determined such to include a non - profit corporation. (Soltis - Sparano, Order No. 1045 at 31; see, also Confidential Opinion, 89 -007; McConahy, Opinion 96 -006). Cf., Novak, �p�inion 91 -009. Third, it is equally clear that the University is a business with which Fazzini's spouse 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. 65 Pa.C.S. § 1102. Through a straightforward application of the above definition, Villanova University is a business and Fazzini's wife is an employee of it. Villanova University is therefore a business with which Fazzini's spouse is associated for purposes of applying Sections 1103(a), (f), and (j) of the Ethics Act. Your arguments to the contrary are without merit. You argue that Fazzini's spouse, as a secretary, is not "on the same level" as others listed in the Rubenstein, 01 -007 September 17, 2001 Page 9 definition, and therefore should not be considered an "employee" for purposes of applying the definition. Such arguments have no basis in law or fact. As for the law, the General Assembly included all "levels" of employees, without qualification, within this definition. We find the statutory definition to be entirely clear and unambiguous in this regard. "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b). Additionally, the legislative history of Act 9 of 1989 establishes the General Assembly's intention that a spouses employment at a secretarial level may form the basis for a conflict of interest on the part of the public official /public employee. See, Legislative Journal of House, 1989 Session, No. 14, at 244. The legislative intent, as confirmed by the contemporaneous legislative history, controls. Statutory Construction Act of 1972, 1 Pa.C.S. § 1921. We do not have the authority to amend the statute as you essentially ask us to do. Furthermore, there is no factual basis for your arguments. Although you may not consider a secretarial job to be important, a job at any level may be important to the person doing it and may form the basis for a conflict of interest as to matters financially impacting the employer which come before the employee or his /her immediate family member as a public official. Fourth, it is clear that Villanova University, the business with which Fazzini's spouse is associated, will realize a private pecuniary benefit under the proposed contract. The University is geographically located in close proximity to Plymouth Township. In fact, the University approached Plymouth Township to develop the proposed baseball field /facilities. We find that Villanova University will realize a private pecuniary benefit through the negotiation of a lease for priority use of Plymouth Township's baseball field /facilities under terms financially favorable to itself, enhancing its amenities without having to use its own land or other less favorable facilities. A private pecuniary benefit is one that is not specifically authorized in law (see, Akerly, Order 976), rather than one that is "personal" as you contend. Since we are not aware of any law that would specifically authorize the University to receive a pecuniary benefit through the proposed action, we conclude that in this case, the pecuniary benefit to Villanova University would be a private one. Citing Novak, Opinion 91 -009, you argue that the pecuniary benefit to the University will not be a "private" pecuniary benefit, but rather will be "remote," since Villanova University will use the baseball field on a non - exclusive basis along with other organizations both inside and outside of Plymouth Township as well as the general public. Novak is inapposite to this matter. In Novak, supra, this Commission addressed the issue of whether a township supervisor who was an employee of the Pennsylvania State University (Penn State), and a township solicitor who was a member of the Board of Trustees of Penn State would have conflicts of interest as to a water authority's conditional use application to operate one or more water wells in order to increase the capacity of its water supply when Penn State was one of its customers. Under the unique facts of the Novak matter, the Commission held that there was no private pecuniary benefit to Penn State because it already had its own wellfields, the conditional use would merely give it an additional source of water for a few buildings, and it was merely one customer of a water utility which included a cross section of businesses, apartments, landowners, and individuals. The instant matter is distinguishable from Novak, supra. In this instance, Villanova University is an actual party to the contract and is an intended Rubenstein, 01 -007 September 17, 2001 Page 10 beneficiary of it, rather than an indirect, third party beneficiary of official action as was Penn State in Novak. Even if Villanova University has other recreational facilities available to it, we see a factual distinction between Penn State's incidental receipt of an extra water source for a few buildings already supplied with water, in the Novak Opinion, and Villanova University's active pursuit of the construction of a baseball field /facilities on a desired nearby township site, for the University's priority use, in this matter. Accordingly, in the instant matter, we conclude that the proposed contract between Villanova University and Plymouth Township will result in a private pecuniary benefit to Villanova University. The fact that others may also use the baseball field when the University is not using it does not alter this conclusion. Fifth, under the facts which you have submitted, there is no basis for applying either the de minimis exclusion or the class /subclass exclusion. We initially note that although these exclusions may apply where the financial benefit is to a business with which a public official or a member of his /her immediate family is associated, you have failed to submit facts establishing the criteria for applying these exclusions. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). As for the de minimis exclusion, we doubt that you could establish that the proposed contract would have a de minimis (insignificant) economic impact. See, 65 Pa.C.S. § 1102. As for the class /subclass exclusion, the facts which you have submitted fail to establish that Villanova University will be affected to the same degree as the other entities or individuals you seek to include in the asserted class /subclass of users. To the contrary, the submitted facts establish that Villanova University will have a bargained -for priority over other users of the field /facilities. Turning to the proffered advantages to the township of having Fazzini participate as a public official in the matter due to his engineering background and experience and expertise in construction, construction management, and cost - cutting, such considerations do not compel a different result. The elements of a conflict of interest are statutorily prescribed, and this Commission does not have the power or authority to carve out exceptions which do not exist in the statute. Richardson, Opinion 93 -006. Where the elements of a conflict of interest are established, perceived benefits flowing to the governmental body do not avoid or nullify a violation of the Ethics Act. See, Zangrilli, Order 946 at 143; Gallen, Order 1198 at 36; Cappabianca, Opinion 89 -014 -R at 9. See also, pinion of the Attorney General, Number 45 -1971. As for the stated purpose of the Ethics Act at 65 Pa.C.S. § 1101.1, which recognizes that public officials should not be discouraged from maintaining contacts with the community through their occupations and professions, the clear prohibition of Section 1103(a) of the Ethics Act may not be ignored, and in any event, it is not Fazzini's occupation /profession which forms the basis for the conflict of interest - -it is his wife's. Based upon the submitted facts, we conclude that Fazzini would have a conflict of interest under Section 1103(a) of the Ethics Act as to the proposed contract between Villanova University and Plymouth Township. Therefore, Fazzini would be required to abstain fully from matters pertaining to the proposed contract and would also be required to fully satisfy the disclosure requirements of Section 1103(j) as to such matters. Rubenstein, 01 -007 September 17, 2001 Page 11 As for Section 1103(f), the proposed arrangement between Plymouth Township and the University would constitute a "contract" which would trigger the requirements and restrictions of Section 1103(f). Conditioned upon the assumptions that the requirements of Section 1103(f) would in fact be fulfilled and the restrictions of Section 1103(f) would in fact be observed as to the contract between Villanova University and Plymouth Township, and not merely referenced in the ordinance adopted by the Plymouth Township Council, Section 1103(f) of the Ethics Act would not prohibit such contracting. The result of Advice of Counsel, 01 -544 is affirmed based upon the analysis herein. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. IV. CONCLUSION: A member ( "Member ") of a township council ( "Township Council ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Member's spouse is a member of his immediate family. A university ( "University ") that: (1) is not part of the State System of Higher Education; (2) is a non - profit corporation; and (3) is the employer of the Member's spouse, is a business with which the spouse is associated, regardless of the spouse's "level" of employment. A proposed contract between the township and the University whereby: (1) the township would construct a baseball field and related facilities on township property; and (2) the University would pay to the township a substantial rental sufficient to cover a portion of the construction of the field /facilities in exchange for priority use of the field /facilities during the university's baseball practice and playing seasons, would present a conflict of interest for the Member of the Township Council whose spouse is employed by the University. Under the submitted facts, the University would realize a private pecuniary benefit through the negotiation of a lease for priority use of the township's baseball field /facilities under terms financially favorable to itself, enhancing its amenities without having to use its own land or other less favorable facilities. Under the submitted facts, there is no basis for applying either the de minimis exclusion or the class /subclass exclusion as to conflicts of interest. As a result of the conflict of interest, the Member of Township Council whose spouse is employed by the University would be required to abstain fully from matters pertaining to the proposed contract and would also be required to fully satisfy the disclosure requirements of Section 1103(j) as to such matters. Conditioned upon the assumptions that the requirements of Section 1103(f) would in fact be fulfilled and the restrictions of Section 1103(f) would in fact be observed as to the contract between the University and the township, and not merely referenced in the ordinance adopted by the Township Council, Section 1103(f) of the Ethics Act would not prohibit such contracting. The result of Advice of Counsel, 01 -544 is affirmed based upon the analysis herein. The propriety of the proposed conduct has only been addressed under the Ethics Act. Rubenstein, 01 -007 September 17, 2001 Page 12 Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Daneen E. Reese