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HomeMy WebLinkAbout92-574Dear Mr. This requested Dudash: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 7, 1992 Mr. Bernie P. Dudash Township of Robinson 1000 Church Hill Road Robinson Township, PA 15205 -9006 92 -574 Re: Conflict of Interest, Public Official /Public Employee, Contracting with Governmental Body, Township Manager, Business with which Associated, Animal Control. responds to your letter of March 26, 1992, in which you advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition upon a township manager or a "business with which he is associated" from contracting with the township. Facts: After noting a prior telephone conversation with this Commission, you state that you have recently been appointed Township Manager of Robinson Township in Allegheny County, Pennsylvania. Prior to such employment, you have had and continue to retain an interest in two business enterprises, specifically a beer distributorship and Triangle Pet Animal Control Services Co., Inc. Triangle Pet Animal Control Services Co., Inc., is a contracted service to various municipalities for the collection of stray animals. The business has serviced Robinson Township since 1985, and all terms and conditions remain the same with no changes since your employment. You state that you have no vote or authority to approve any contract. You summarize your understanding of your prior telephone conversation with this Commission as indicating that these circumstances are permissible under the Ethics Law, which would not preclude your corporate interest from doing business with the Township; that the process should be an open /public process which you state that it was and continues to be; that you cannot lobby on behalf of the contract or the company as it relates to Robinson Township; and that to your knowledge it is not precluded by any township law or ordinance, as to which you note that you need the Solicitor's opinion. Mr. Bernie P. Dudash May 7, 1992 Page 2 You have submitted a copy of your memorandum to the Solicitor who advised that you contact this Commission directly. Said memorandum is incorporated herein by reference. Discussion: As the Township Manager for Robinson Township in Allegheny County, Pennsylvania, you are a "public employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. 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 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 immediate family or a business with which he or a member of his immediate family is associated. "Authority 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. Bernie P. Dudash May y, 1992 Page 3 "Businees 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 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 t6 a public official /employee anything of monetary value and 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. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Finally, contracting restrictions as to public officials/ employees are provided in Section 3(f) of the Ethics Law 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 tore with any person who has been awarded a contract with the governmental body with which the Mr. Bernie P. Dudash May 7, 1992 Page 4 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 of the contract or subcontract. In applying the above provisions of the Ethics Law: to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although you would not be prohibited under Section 3(a) of the Ethics Law from engaging in an activity or business which would contract with Robinson Township, you could not perform your .private business using governmental facilities or personnel. In particular you could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out private business activities. In addition, you could not during government working hours, solicit to promote such business activity. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not prohibit you from entering into the private business arrangement. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements •whenever • a public official /employee would contract with his governmental body. The term "governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, • service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, •a Mr. Bernie P. Dudash May 7, 1992 Page 5 nation, or . political subdivision thereof or an agency performing 'a governmental function. Under the above quoted definition, it is clear that the governmental body, with which you are associated would include Robinson Township. Accordingly, under Section 3(f) of the Ethics Law, any contract that you or a business with which you are associated, including Triangle Pet Animal Control Services Co., Inc., would,.:uegotiate with the governmental body would have to be awarded through,an''open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as, per the requirements of Section 3(f). In addition, Section 3(f1 als'b restricts the award of sub - contracts. Thus, if the governmental' body with which you are associated entered into a contract with a`tjiven' individual or entity who in turn sought to enter into a.sub- contract with you, or the business with which you are associated, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if you or the business with which you are associated enters into such a contract or sub - contract after complying with the restrictions of Section 3(f), you would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting to be allowed under the Ethics Law, strict compliance with the provisions: of Section 3(f) of the Ethics Law as outlined above must be followed. Unless the restrictions of Section 3(f) of the Ethics Law are complied with, such contracting would be prohibited. Parenthetically, although the contracting in question would not be prohibited under the Ethics Law provided the requirements of Sections 3(a), (f) and (j) are satisfied, a . problem may exist as to such contracting under the respective code. In the instant situation, the First Class Township Code provides as follows: 556811. Penalty for personal interest in contracts Except as otherwise provided in this act, no township official, either elected ; • or appointed, who knows or who by the exercise of reasonable diligence could know, shall be interested to any appreciable degree, either directly or indirectly, in any contract for the sale or furnishing of any supplies or materials for the use of the township or for any work to be done for such town Mr. Bernie P. Dudash May 7, 1992 . Page 6 involving the expenditure by the township of more than three hundred dollars in any year, but this limitation shall not apply to cases where such officer or appointee of the township is an, employe of the person, firm or _corporation to which the money is to be paid in a capacity with no possible influence on the transaction and in which he cannot be possibly benefited thereby, either financially or otherwise. But in the case of a commissioner if he knows that he is within the exception just mentioned, he shall so inform the commissioners and shall refrain from voting on the expenditure or any ordinance relating thereto and shall in no manner participate therein. Any official or appointee who shall knowingly violate the provisions of this section shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the township, to . ouster from . office, and shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars. 1931, June 24, P.L. 1206, art. XVIII, S1811, added 1949, May 27, P.L. 1955, S39. 53 P.S. S56811 Since such contracting may be prohibited by the above quoted provision of the First Class Township Code, but not under the Ethics Law, it is suggested that advice in that regard be sought from private counsel. 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 than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed in this advice is the applicability of the First Class Township Code. Conclusion: As the Township Manager for Robinson Township in Allegheny County, Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a public official /employee or a "business with which he is associated" may contract with the governmental body but could not vote or participate in the matter of the contract. The disclosure requirements of Section 3(j) outlined above must be observed. Finally, if the contract is $500 or more, the open and Mr. Bernie P. Dudash May 7, 1992 Page 7 public process as outlined above must be accomplished. The public official /employee could -lot have any supervisory or overall responsibilities as to the contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Due to the possible application of the First Class Township Code in this matter, it is suggested that advice be obtained from private counsel in that regard: . 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date 6f this Advice pursuant to 51 Pa. Code 52.12. ncerely, Vincent \1 . `Dopko Chief Counsel •