Loading...
HomeMy WebLinkAbout88-547 StoneSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (7171 783-1610 April 13, 1988 ADVICE OF COUNSEL Mr. Donald Stone R.D. #1, Box 8 88 -547 - Thompson, PA 18465 Rel Conflict of Interest, Township Supervisor, Contracting with Township Dear Mr. Stone: This responds to your letter of February 24, 1988, in which you, requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any upon a class township contracting with a company wherein thehtownship supervisor ois associated with that business. Facts: As a supervisor in Ararat Township recent seminar advised you that you may be guilty aof ahconflictsofuinterestaif .ou installed sewer systems in the township wherein you served as township supervisor. After noting that Ararat Township does not have a planning commission, you state that all subdivisions are governed by Susquehanna Planning Commission. You advise that the county consults and solicits comments from the township regardin can m ed generally subdivision. You further note that you are a contractor and possibly interested in installing sewer systems in Ararat Township. Under these facts and circumstances, you request advice under the Ethics Act as to whether-there are any restrictions or prohibitions upon such activity. Discussion: As a second class township supervisor in Ararat Township, "public official" as that term is defined under the State Ethics Act. P.S. 5402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Mr. Donald Stone April 13, 1988 Page 2 The Act does, however, provide as follows: Section 3. Restricted activities. (a) No public official or public employee 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, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use his position or any confidential information obtained therein in order to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated. The Act defines business with which one is associated as follows: Section 2. Definitions. "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 holder of stock. 65 P.S. 402. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a township supervisor may not use his public position to secure any financial gain for himself or for the business which he is associated. See Domalakes, Opinion 85 -010 Since it appears that you are associated with the busines which would install sewer systems in the township, Section 3(a) of the Ethics Act would preclude you from using your public office to obtain a personal gain for yourself or with the business with which you are associated. Thus, although Section 3(a) of the Ethics Act would not prohibit that company from doing business with the township, you could not use your office by participating or voting in favor of the award of contracts to that business. Further, you must note you abstention of public record together with the reason for that abstention. Mr. Donald Stone April 13, 1988 Page 3 Section 3(b) of the Ethics Act provides: 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. In addition to the foregoing, the State Ethics Act provides as follows: Section 3. Restricted activities. (c) Ni 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 a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Mr. Donald Stone April 13, 1988 Page 4 In relation to the above provision of law, the State Ethics Commission has generally determined that this provision is a procedure to be used when a public official or employee contracts with his own governmental body in excess of $500. Bryan, Opinion 80 -014; Lynch, Opinion 79 -047.. The Commission, however, has also determined that the above provision of law is .not a general authorization for a public official to contract with his own governmental body where such is otherwise prohibited by law. The above,provi sion of law clearly is intended to be a procedure to be utilized where contracting is otherwise allowed by law. For example, if a particular business transaction was prohibited under Section 3(a) of the State Ethics Act, this particular provision of law would not authorize that transaction. Additionally, if a particular code prohibits a public official from being interested in a *contract, this provision would not allow that interest. Parenthetically, where contracting is otherwise allowed appears to be no expressed prohibition to such contracting, t particular provision of law would require that an additional utilized when such business is transacted. This procedure, t public process, must be used in all situations were a public otherwise appropriately contracting with his own governmental of $500. This open and public process would require: or where there he above procedure be he open and official is body in excess (1) prior public notice of the employment or contracting possibility; (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. See,. Cantor, Opinion 82 -004. Thus, in the event that contracting would be allowed, the above process must be employed. Lastly. 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. Conclusion: As a second class township supervisor in Ararat Township you are a public official subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, although the business with which you are associated would not precluded from contracting to install sewer systems in the township, you may not use public office through participating or voting regarding the award of that contract. Further, you must note your abstention of public Mr. Donald Stone April 13, 1988 Page 5 record together with the reason for your abstention. Under Section 3(c) of the Ethics Act, the business with which you are associated may contract with the township provided the criteria of Section 3(c) enumerated above at`e followed and provided the activity is not prohibited under the Second Class Township Code. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a complete enforcement proceeding initiated by the Commission, and evide conduct in any other civil or criminal proceeding, providing disclosed truthfully all the material facts and committed the of in reliance on the Advice given. This letter is a public record and will be made ava ilabl Finally, if you disagree with this Advice or if you have challenge same, you may request that the full Commission revi A personal appearance before the Commission w i l l be scheduled Opinion from the Commission w i l l be issued. Any such appeal writing, to the Commission within 15 days of service of this to 51 Pa. Code 2.12. Sincerely, C Vincent J. Dopko General Counsel defense in any nce of good faith the requestor has acts complained e as such. any reason to ew this Advice. and a formal must be made, in Advice pursuant