HomeMy WebLinkAbout94-630 FinchSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 171.08 -1470
TELEPHONE (717) 783 -1.610
ADVICE OF COUNSEL
November 18, 1994
David C. Finch
Assistant Township Manager
Upper Southhampton Township
939 Street Road
Southampton, PA 18966 -4786 94 -630
Re: Conflict, Public Official /Employee, Township, Supervisor,
Business with which Associated, Installation of Pay Phones.
Dear Mr. Finch:
This responds to your letter of October 4, 1994 in which you
requested. advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a second class
township supervisor participating in a matter involving the
installation of private phones when the supervisor has a business
relationship with the company that may do the installation.
Facts; Southampton Township is considering the purchase or lease
of three pay phones at various recreational facilities and has
receiYsd offers for phone installation from Bell of Pennsylvania as
weii as Fluehr andAssociates, a private vendor, who has presented
more favorable financial arrangement. One of the township
euerv3.sors has a business relationship with Fluehr and Associates
but the supervisor has brought no pressure to bear as to whether
Pluehr and Associates should be utilized for the project. It does
Rot aprear that the supervisor will be called upon to vote on this
rojeof which in all likelihood will be handled entirely by the
@gresption and
Pat Board. The supervisor prior to his election to
Vle Board did supply Pay phones to the township through, his company
at %Vsr locations. You seek a ruling from this Commission on the
potential conflict of the supervisor.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7 (11) of the Ethics Law}, 65 P.S. 61407 (10) ,. (11),, advisories
are issued to the requestor based upon the facts which the
requestor has submitted. En issuing the advisory based upon the
Finch, David C., 94 -630
November 18, 1994
Page 2
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the. facts, nor does it
speculate as to facts which have, riot, been eubmitted. It is the
burden of the requester to, truthtall,Y di4Close all of the material
facts relevant to the inquiry. 65 P.S. §8 (10;) , (11) . An
advisory' only affords, a defense t o, the extent the requestor has
truthfully disclosed all of the. material
As Supervisor for Southampton Township, the individual is
a public official as that term is defined under the Ethios Law, and
hence he is subject to the provisions of that law.
Section 3(a) of. the Ethics Law provides:
Section 3. R,ggtricted Activities.
(a) No public official, or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Dejfinl,tions.
"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 of his ia� Redia 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.
"Financial interest." Any financial
Finch, David C., 94 -630
November 1S, 1994
Page 3
interest in a legal entity engaged in business
for profit which comprises more than 5% of the
equity of the business or more than 5% of the
assets of the economic interest in
indebtedness.
"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 public employment
with the Commonwealth or a political
subdivision.
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 and no public official / employee shall
solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference is
made to these provisions of the law not to 1 that there has
been or will be any transgression thereof but mmerel to
complete response to the question presented y Provide a
.
Section 3(f) of the Ethics Law provides as follows:
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 pubic notice and subsequent
Finch, David C., 94 -630
November 18, 1994
Page 4
public disclosure o aall proposals considered
and contracts; awarded. In sigh a ' case; the
public official or p4b1icz; emoyee shall not
have any supervisory or o erabkl, reap j sibility
for the implementation or adnlinis4ration of
the: contract. Any contract . or subcontract
macs, ix. violation of this subsection shall be
voi:debslie: hy a court of comp.e jurisdiction
if the snit is commenced within 90 days of the
making. of the contract or subcontract.
Parentthetica,llr, where contracting is otherwise allowed or
where there appears to be no expressed prohibitions to such
contracting, the above particular provision of the law would
require that an open and public process must be used in all
situations where a public official; /employee is otherwise
appropriately contracting with his own 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. This open
and public process would require . that the following be observed as
to the contract with the governmental body:
(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.
Section 3(f) of the Ethics Law 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.
Section 3(j) of the Ethics Law provides as follows:
4ec 3. RestKi9t9d. acrtiivities
(j) Where voting Confl,i.cts are not
otherwise addressed by the Conati.tutiQn of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procsdirs
shall be employed. Any public official . or
public employee who in the discharge of his
Finch, David C., 94 -630
November 18, 1994
Page 5
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, is 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.
If a conflict exists, Section 3(j) requires the public
official /employee to ' "abstain and' to publicly disclose the
abstention` and reasons for same, both orally and by filing a
wi 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 Law, then in that event participation is
permissible provided the disclosure requirements - noted above are
fi f ollowed. See, Mlakar, Advice 91- 523 -S.
In applying the provisions of the Ethics Law to the instant
matter the supervisor would have a conflict under Section 3(a) of
the Ethics Law regarding Fluehr and Associates. Although the
precise business relationship is not delineated, it is"'assumed for
purposes` of this advice that Fluehr and Associates ` 'a business
with which the supervisor is associated. Therefore, as to any
matters ,involving Fluehr and Associates or the phone installation
project on which they would be considered," the supervisor would
have a conflict, must abstain and observe the disclosure
requirements of Section 3(j) noted above. In addition, to the
extent that Fluehr and Associates is a business with Which the
Finch, David C., 94 -630
November 18, 1994
Page 6
supervisor is associated, the contracting requirements as set forth
in Section 3 (f) of "tlie` Ethics Law must be observed.
The proQriety of the proposed conduct has only been addressed
under the Ethics Law;"' the applicability of any, other statute, code,
ordinance, regulaton'or other code of conduct other than the
Ethic* "Law has'no't been consiadred °in that they-do not involve an
interpretation Of the Ethics Law. ` Specifidally not addressed
herein - the applicability of the respective'#unicipal code.
Conclusion: As supervisor for SouthamRton Township, the individual
is e puPid official subject to the prvisions of the Ethics Law.
As to ma tter of the installation' of pay telephones in the
Tbwnship'by'a business by which the supervisor is associated, the
supervisor ° would have a conflict, must abstai24 and observe the
disclosu requirements of Section 3(j) of the Ethics Law. The
conttaoti=ig provisions of Section 1 (f) of the Ethics Law noted
above must be satisfied. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Law.'
Pursuant to Section 7(11), this Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in any other 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, if you disagree with this Advice, or if you have
any reason z to challenge" . same, You ma y pp a eal tAe AO/ea to the
4411 (2ommissioa. A. "personal appearance 'faefon% the C'Omission
W11; be scheduled 4;. a format 'opinion will hq issued' by the
6.7 - ' salon
Any Buck app ea1� must be in writing and ust be actually
received at the Come ,scion within fifteen (1& days coif the date
af =tbis pursu = • t, 0: 51 Pa. Code 513.2(h). The 'appeal may
2, on by hard delivery � i $t aCea
m r 12 1 ; r te.-l e tt 2 : 1 - vfl,' eerY,Acl; "4" by FAX transmission 4717 -7,r z -t 8d6).
sal at the, Commission within f, ,fteen
dismissal of the appeal
ecl ncerely,
r
IlL
Vincent k . . Dopko
Chief Counsel